Wednesday, February 18, 2015

Solving Windsor's Many Mysteries

Heather K. Gerken

Yesterday I noted that anyone attempting to offer a satisfying read of Windsor has to explain its unusual blending of rights and structure and its refusal to analyze the question through the lens of liberty or equality, on the one hand, or federalism, on the other.  As I’ve written in a forthcoming paper, even the text of the opinion reveals an unusual pairing of rights and federalism terminology.  In the wake of the opinion, much of the commentary dismissed Kennedy as muddle-headed and began squabbling over whether Windsor was “really” an equality opinion or liberty opinion or a federalism opinion.

What I’ve found so dispiriting about most, but not all, of the academic commentary is the rigid insistence on an either/or approach – that something is either federalism or liberty, either federalism or equality.  That view misses the crucial truth undergirding Windsor, the hidden logic that helps make sense of its many mysteries.  The key to understanding Windsor is to recognize that the ends of equality and liberty are served by both rights and structure.  It has simply been a mistake to assume that the values associated with the rights side of the Constitution are promoted solely by the rights side of the constitution.  But that mistake is made by virtually all constitutional law theorists. For just as those interested in dialogue and equality and integration write almost exclusively about rights, those who write about federalism miss what I’ve called the “discursive benefits of structure” – the ways in which federalism promotes democratic dialogue and, ultimately, democratic integration.  If you don’t understand the ways in which federalism and rights work together to promote change, you can’t understand Windsor.

The marriage-equality fight is thus a stand-in for this deep constitutional truth. Federalism and rights have long served as interlocking gears moving us forward. Kennedy’s opinion might not have been a model of clarity, but at least it recognized that important fact. Windsor is neither a rights opinion nor a federalism opinion.  It is both. And that is precisely as it should be.

That’s why the First Amendment and federalism work so well in tandem.  Dissenting speech leads to debate, which leads to organizing, which leads to policymaking, which in turn provides a rallying point for still more debate and organizing and policymaking. Social movements include pragmatic insiders, forging bargains from within, and principled outsiders, demanding more and better from without.  The key point to emphasize, however, is that federalism – far from being the enemy of dissent – supplies the policymaking gears that are all but essential for any movement to move forward.

Once you think of rights and structure as interlocking gears, once you recognize you can dissent by deciding, once you imagine federal dependence on the states as an advantage for dissenters, the many mysteries of Windsor seem less . . . mysterious.  What was at stake in Windsor wasn’t either structure or rights, neither the right of the states to bless same-sex marriage nor the rights of same-sex couples to seek that blessing.  What was a stake in Windsor was how the debate over same-sex marriage was going to unfold – specifically, whether states legalizing same-sex marriage would be allowed to pull the federal government along with it.

            Tomorrow I’ll describe why Windsor is best understood as an effort not just to accommodate social change, as many have argued, but to “clear the channels of political change” in an Elyian fashion.

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