[With permission of SCOTUSBlog, I am cross-posting my analysis of today’s Windsor DOMA decision, Federalism Marries Liberty in the DOM Decision. Other essays have or will be posted byWilliam Duncan Marriage Family Law Foundation,Larry Tribe Harvard Law School,Suzanne Goldberg Columbia Law School,Helen Alvare George Mason University School of Law,Gerard Bradley Notre Dame Law School,John Eastman Chapman University School of Law,Eric Restuccia and Aaron Lindstrom Michigan Solicitor Generals Office,Steve Sanders Indiana University Maurer School of Law, andPaul Smith Jenner & Block.]
Because the logic of Justice Kennedys opinion for the majority inWindsoris novel, it is likely to confuse observers as it seems to have confused the dissenters. So in this post, I want to lay bare this logic, by explaining how it resembles, but also differs from, the federalism argument we made in our Federalism Scholarsamicus brief(cited by the Court at page 23).
In our brief, we contended that DOMA was unconstitutional because (a) Congress had no enumerated power to regulate or defend marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers. By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage. But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection: (c) DOMAs sweeping and indiscriminate application to over a thousand federal statutes could not passanylevel of equal protection scrutiny, even the most deferential, because Congress failed to identify afederal interestwhy each of these disparate federal laws should not track state laws defining marriage, as had previously been the case.
In his opinion for the Court, Justice Kennedy employed much of this federalism logic, but with a significant twist that converted it from an enumerated powers into a liberty argument. In brief, he used the interference with the traditional province of states to regulate marriage to justify heightened scrutiny under the Fifth Amendments Due Process Clause. Here is the logic of his opinion:
In short, under Justice Kennedys reasoning,it is the fact that states have recognized same-sex marriagethat gives rise to heightened judicial scrutiny (Herethe States decision to give this class of persons the right to marryconferred upon them a dignity and status of immense import. (emphasis added) ). In essence, state law is being used to identify a protected liberty or right within its borders against a federal statute. Although this converted our enumerated powers argument into a protection of individual rights, at the same time, it both relied on and preserved the states prerogatives to define and protect liberty.
What makes this form of reasoning novel is that a states exercise of its police powers to identify a right has not previously been used to justify heightened Due Process or Equal Protection clause scrutiny (although something like this was hinted at by Justice Kennedys allusion inLawrenceto an emerging consensus among the states concerning antisodomy laws). In the past, the judicial protection of federalism was considered to be an issue that is doctrinally separate from that of due process or equal protection. First, ask whether a law is within the power of Congress to enact? Second, if so, ask whether it violates the constraints of the Fifth or Fourteenth Amendments? Under the second inquiry, heightened Due Process Clause scrutiny only occurs when a liberty that is deemed to be a fundamental right is being restricted; heightened Equal Protection Clause scrutiny only occurs when legislation employs a suspect classification like race or gender.
Here the Court transcends this doctrinal line by usingstate lawsto identify an individuals liberty interest that justifies subjecting afederal lawto heightened scrutiny. This is not how the doctrine has previously worked. Why the innovation?
To date, the Court has not recognized homosexual relations as a fundamental right, or homosexuality as a suspect classification. Taking either step inWindsorwould have resulted in a so-called fifty-state solution that would mandate same-sex marriage for every state. So what the majority does instead is identify a new trigger for heightened scrutiny: interfering with an interest in onesstate-recognizedmarriage. In this way, the federalism concerns expressed on pages 17-19 are as essential to its due process/equal protection reasoning as they were to Justice Roberts adoption of a saving construction inNFIB v Sebelius.
This should come as no surprise, given that Justice Kennedy was the swing vote. But it is noteworthy that the four liberal justices signed onto this federalism-laden analysis without the usual concurring opinion asserting, say, a traditional equal protection rationale for requiring the recognition by all states of same-sex marriages. Perhaps they figure, as Justice Scalia speculates, that there is more than enough in the majority opinion about animus to assist such challenges to state laws in the future. Or perhaps if enough states recognize same-sex marriage we will see the emerging awareness rationale ofLawrence v. Texasemerge once again.
By adopting this federalism approach to identifying protected liberty, however, states remain free to continue deciding the marriage question. Of course, this assumes that what the Court today says about the irrationality of DOMA at the federal level is not used to undermine the constitutionality of refusals to recognize same-sex marriage by states as Justice Scalia predicts will flow from the majoritys reasoning.
Federalism Marries Liberty in the DOMA Decision