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.