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.