I started teaching in August of 2012. One month earlier, the Court decided NFIB v. Sebelius. And one month later, a cert petition was filed in United States v. Windsor. At the time, I and everyone else recognized that DOMA was doomed. The only question concerned on what grounds the Court would rule. Would it be the Due Process Clause or Equal Protection "component" of the Fifth Amendment? Or would Justice Kennedy adopt a federalism-based argument–perhaps along the lines of a brief submitted by several Volokh conspirators. Ultimately, Justice Kennedy did what he did best: sprinkle a bit of Due Process, grate some Equal Protection, add a pinch of dignity, let it simmer over a low flame of federalism, and voila–Liberty!
No one really cared about the reasoning. What mattered was the bottom line–love wins! And more importantly, Justice Kennedy gave a green light to every judge to strike down marriage laws. But one part of the majority opinion seems especially relevant for Brackeen. The Court discussed at some length why the federal government, historically, "has deferred to state-law policy decisions with respect to domestic relations." Indeed, the Court relied on this principle to show that the federal Defense of Marriage Act was unconstitutional.
One would think that Brackeen should have addressed Windsor. While DOMA merely defined marriage for purposes of federal law, leaving state laws intact, ICWA forces every state to enforce a federal domestic law. But Justice Barrett does not even cite Windsor. Look how quickly she cabins unhelpful precedent:
