Balkinization  

Saturday, February 15, 2014

Federalism as a Way Station in Windsor

Neil Siegel

I have a new paper on SSRN that reads Windsor as an exemplar of doctrine in motion during a time of change. Specifically, I analogize the majority opinion's various invocations of federalism to other Bickelian devices for managing the processes of constitutional change, including manipulation of the tiers of scrutiny and the justiciability doctrines. I also analogize the Court's uses of federalism rhetoric as a way station on the subject of same-sex marriage to President Obama's similar past uses of federalism frames on this issue, and to Senator Stephen Douglas's championing of popular sovereignty during the 1850s as the preferred solution to the explosive problem of slavery in the territories. Here is the abstract:

This Article asks what the U.S. Supreme Court’s opinion in United States v. Windsor stands for, and finds that it exemplifies doctrine in motion during a time of social and legal change. According to Chief Justice Roberts, the Court invalidated Section 3 of the Defense of Marriage Act (DOMA) because it inferred animus from Congress’s extraordinary intrusion into an area central to state domestic relations law. Like some commentators, Roberts construed the Court’s emphasis on what might be called “extraordinary” evidence of animus as not impugning the authority of states to ban same-sex marriage. The Article shows that such a reading can account for much of the Court’s language, but not for the opinion as a whole given the Court’s emphasis on DOMA’s purposes, effects, and social meanings—none of which seem limited to DOMA.

Justice Scalia read the majority opinion as turning on what might be called “ordinary” evidence of animus. On that interpretation, which many commentators endorse, only a desire to harm same-sex couples can explain denying them the same dignity that opposite-sex couples enjoy by being able to marry. This Article shows that such a reading has force, but that there are limits to its explanatory power given the Court’s emphasis on DOMA’s interference with state decisions to allow same-sex marriage. The opinion resists any dispositive interpretation; it preserves a Delphic obscurity.

This Article seeks to understand why the Court’s opinion is written that way by examining its most puzzling aspects: its invocation of state control over domestic relations to qualify its embrace of the equal dignity of same-sex couples; its selective use of state developments in the service of living constitutionalism; and its novel, unnecessary use of the breadth of a federal law as evidence of animus. The Article reads
Windsor as an exemplar of a phenomenon that is easily overlooked or misunderstood, but that becomes apparent once doctrine is understood dynamically rather than statically. Windsor is what judicial opinions may look like in times of transition, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such periods, federalism rhetoric—like manipulating the tiers of scrutiny and the justiciability doctrines—may be used as a way station toward a particular later resolution.

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