A few years ago, the Supreme Court, in a plurality opinion by Justice Alito, spent pages upon pages talking about how to identify fundamental rights for purposes of the 14th Amendment. That was McDonald v. Chicago.
Less than three years later, neither Alito, nor Scalia, who joined McDonald, cited it in discussing if the same-sex marriage was a fundamental right.
Both Scalia and Alito in dissent in Windsor cited Washington v. Glucksberg to discuss fundamental rights.
Yet the opinion does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 720–721 (1997), a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “‘ordered liberty.’” Id., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)).
Why is McDonald v. Chicago not cited? McDonald relied on a Glucksberg-Palko mishmash, and other cases, in finding that the right to keep and bear arms was fundamental for purposes of incorporation. A recent precedent on point would seem to be a good case to cite.