Thursday, February 19, 2015

Windsor v. United States: Clearing the Channels of Political Change

Heather K. Gerken

Two days ago, I began describing a forthcoming paper of mine offering a new take on Windsor v. United States.  I noted that any satisfying account of Windsor must explain its many mysteries, including its unusual rhetoric and unconventional blending of rights-based and structural analysis.  Yesterday I argued that one can only understand Windsor if one grasps the core truth underlying the opinion: federalism and the First Amendment have served as interlocking gears, moving the cause of same-sex marriage forward. 

A handful of academics have tried to explain the link between rights and structure in Windsor by casting the case as an effort to use federalism to accommodate the fact of social change.  Like others, I think Windsor can be read as an effort – albeit a tentative one-- to think concretely about the relationship between social change and constitutional change.  But I have a quite different take on the fashion in which Windsor is doing so.  Windsor, in my view, was “clearing the channels of political change.”

One way to understand Windsor is to imagine federalism as a face-saving means of folding social change into the Constitution, a fig leaf that allows the Justices to adapt to the times without forcing them to offer squishy odes to the living Constitution.  On this view, the case resembles the Court’s practice of looking to the states to determine what constitutes cruel and unusual punishment.

But Windsor isn’t the right case for that conclusion.  The 8th Amendment cases come at or near the end of the game, when a new national consensus has emerged and the Court is mostly policing outliers.  Windsor, in sharp contrast, is focused on the process of social change in media res.  At the time Windsor was decided, the marriage equality movement was at an inflection point, with 12 states and the District of Columbia legalizing same-sex marriage.  The game was far from over, which is why Windsor wasn’t giving a constitutional blessing to a new consensus.  So how do we think about what the Court did in Windsor given that unusual fact?

It’s hard for me not to view all of this through the lens of Ely’s Democracy and Distrust.  A process account helps explain why Kennedy was willing to invalidate federal law without saying anything, either way, about the constitutional status of state law.  The Court in Windsor was, in effect, “clearing the channels of political change.”  It was ensuring that the proponents of marriage equality were able to take full advantage of what I’ve called the “discursive benefits of structure.” 

DOMA reflected what once was the national view, forged in the wake of Hawaii’s threat to allow same-sex marriage in 1996.  But the brouhahas in the states over same-sex marriage signaled to the Court that the consensus was unraveling.   Justice Kennedy is quite explicit on this point.  The Court would surely have stepped in if the federal government tried to silence proponents of marriage equality during this period.  What it did in Windsor was take a similar stance on the structural side.  It made sure that federal law didn’t inhibit the debate as it was running through what Jessica Bulman-Pozen terms the state “staging grounds” of national politicking.  It made sure that federal law didn’t interfere with states’ efforts to provide full marital benefits to the same-sex marriages it had endorsed.  It made sure proponents of same-sex marriage could take advantage of the interlocking gears of rights and structure.

I realize that may seem like a counterintuitive idea.  Ely, after all, was preoccupied with thinking about when courts could intervene on the rights side of the equation, not the structural one.  But it makes sense of Windsor’s many doctrinal and rhetorical mysteries.

Note, too, that by lifting DOMA’s restrictions, Justice Kennedy enables proponents of marriage equality to take full advantage of the regulatory integration between the states and the federal government.  Before Windsor, when the states changed their positions on same-sex marriage, the federal government didn’t have to adjust.  Now when the states move on marriage quality, they get to do what the states do elsewhere in the marriage arena and tug the federal government along with them.

Note also how the Court’s decision in Windsor even cleared the channel for political change at the judicial level (courts, of course, have long ben sites of politicking for social movements). Just as DOMA loomed large over state legislators, uncertainty about the Court’s view on these issues loomed large over lower-court judges. Windsor, in effect, licensed lower court judges to take part in the process of social change as well. As a result, dozens and dozens of judges invalidated same-sex marriage bans in Windsor’s wake. This social fact has also changed the conditions in which the debate over the constitutionality of same-sex marriage will take place when the Court considers the question this spring.

That’s what I meant when I invoked Ely’s phrase about “clearing the channels of political change.”  What Justice Kennedy did was insist that the national government stand aside while the people, in their capacity as state peoples, rethought the old consensus.  He insisted that the national government stand aside as its citizens gave content to rights-based notions like liberty and equality through the structural apparatuses the Constitution has provided.  What Justice Kennedy did was ensure that both of the interlocking gears of our democracy – rights and structure –were free to move without committing to them moving in a particular direction.

While I’m not ready to endorse this read as a Platonic ideal, this read of Windsor has two, distinct advantages over the alternatives.  First, it’s the only interpretation that makes sense of the many mysteries of Kennedy’s opinion.  Scholars have offered lots of arguments about Windsor as a way station or a temporary reprieve or a heavy hint from the Court, and they certainly have their realpolitik point.  But those reads don’t square with interstices of the analysis, let alone the unusual rhetoric of the opinion.  My aim is to offer an internalist account of the decision, not a psychoanalytic one – the best read of what the opinion actually says, not an effort to divine what the opinion might mean.

Second, and more importantly, the account I’ve offered here reflects an important constitutional truth about how our democracy functions, one that has not gotten the attention of the courts or the vast majority of law professors to write on the subject.  Windsor recognizes that rights and structure -- long thought to be inimical or at least orthogonal to one another -- are deeply and importantly connected to one another and to the central projects of our democracy.  They are interlocking gears, moving the projects of discourse and integration forward.  And while constitutional doctrine has not yet recognized this important fact, that’s the doctrine’s problem, not Windsor’s.

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