Tuesday, February 17, 2015

Justice Kennedy's Mad Genius: A New Take on Windsor v. United States

Heather K. Gerken

Windsor v. United States is much on our minds these days as the Supreme Court looks poised to decide whether same-sex marriage bans are constitutional.  Windsor isn’t just a signal of where the Court is going, but an important opinion unto itself.

I’ve just written a paper offering a new take on Windsor.  The essay argues that while Windsor flouts just about everything we teach our students in constitutional law, it is right to do so.  Justice Kennedy blurs the lines between federalism, liberty, and equality, and he blurs the lines between structure and rights.  The genius of the opinion is that it recognizes that rights and structure are like two interlocking gears, moving the grand constitutional project of integration forward. While the doctrine isn’t geared to recognizing that reality, that’s the doctrine’s problem, not Windsor’s.  

There have been many articles trying to guess what Justice Kennedy was hinting when he wrote Windsor, but this read best fits with what the opinion actually says.  It’s an effort at construction and interpretation, not divination.  The paper thus begins by describing Windsor’s many doctrinal and rhetorical mysteries. It’s not just that the opinion blends -- seemingly willye nillye -- liberty, equality, and federalism analysis while refusing to follow the logic of any of those doctrinal lines.  It’s not just that the opinion reads as if a federal right to same-sex marriage doesn’t exist now but might well exist later.  Windsor’s mysteries seep down into the grain, inflecting the very text of the opinion itself.  It’s strange, for instance, that Windsor repeatedly – even doggedly -- describes the equality and liberty interest here as one recognized by the state.  The traditional rights/structure divide doesn’t accommodate such a distinction.  If same-sex couples enjoy a right to marry, it matters not at all if the right has been recognized by the state of New York. The last part of Kennedy’s phrasing is pure surplus, and yet he repeats it again and again.  That textual pairing – a right recognized by the state -- is just as strange Windsor is a federalism case.  New York’s decision to recognize same-sex marriage would be protected whether the state was recognizing a constitutional right or just making policy.  Even the doctrinal test used to invalidate DOMA is a mystery – the problem, we are told, is that DOMA is both narrow and broad.  It’s not clear why that’s a magic combination under any account of the harm. 

These mysteries pose a real challenge to anyone attempting to explain Windsor.  Any satisfying account of the opinion must explain them, which is precisely what I hope the paper does.  As I’ll explain tomorrow, in attempting to explain those mysteries, the article focuses on a core but neglected truth at the heart of the opinion – the fact that rights and structure work together to move debates forward, with federalism compensating for the shortcomings of the First Amendment.  Indeed, the paper claims that Windsor is best understood as an effort to clear the channels of political change by allowing proponents of marriage equality to take full advantage of what I've called “discursive benefits of structure” and the regulatory integration of state and federal administrative regimes. 

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