Thursday, June 27, 2013

Scalia is right: Justice Kennedy's opinion in Windsor doesn't rest on federalism

Deborah Hellman

The Chief Justice, in an opinion dissenting in Windsor, claims that the majority’s opinion rests on federalism, and thus that it should lend support to the view that state laws limiting marriage to opposite couples are constitutional.  Rick Pildes (see below) in part agrees – arguing that the opinion rests on the interrelated grounds of federalism and equal/protection due process. In this reading, I believe both the Chief Justice and Professor Pildes are mistaken.  While the majority in Windsor does spend considerable time discussing the fact that federal intrusions into definitions of marriage are unusual, this discussion is not made in support of a federalism rationale.  Rather Justice Kennedy argues that “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage … is strong evidence of a law having the purpose and effect of disapproval of [same sex couples].”  In other words, DOMA expresses that gay couples are second-class citizens.  How do we know that DOMA stamps these couples as inferior?  In part, argues Justice Kennedy, because the federal government has gone out of its way to intervene in an area normally left to states.  Respect for federalism does not play any role in justifying the decision.  Rather, the deviation from traditional practices here serves the function of making clear that the federal action has the purpose and effect – or I would say the meaning – of demeaning gay couples.  

What does Windsor thus portend for the constitutionality of state laws that restrict marriage to opposite sex couples?   That will depend on whether a state law restricting marriage to opposite sex couples similarly demeans same-sex couples and their unions.  Justice Kennedy might think that without the unusual action of the federal government reaching into state affairs, the meaning of a restrictive state law is less clear or less stigmatizing, so in a sense he hasn't committed himself to the view that state laws are also constitutionally infirm.  However, Kennedy uses the word dignity (or indignity) a total of 10 times in his fairly short opinion – signaling the importance of an interest that he used to invalidate a Texas law criminalizing non-coital sex in Lawrence v. Texas.  DOMA demeans the dignity of same-sex couples because it takes from them the status and respect that their own states have conferred upon them in recognizing their marriages.  If what matters is whether a law expresses that same sex couples are inferior, it seems to me a relatively small step to conclude that state laws limiting marriage to opposite sex couples should also be found unconstitutional. 

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