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Windsor and Hollingsworth’s Silver Lining



Guest post by Ammon Simon, policy counsel at the Judicial Crisis Network.

Yesterday, the Supreme Court issued its long-awaited decisions in United States v. Windsor and Hollingsworth v. Perry. Neither produced the national right to same-sex marriage that the plaintiffs in the cases had hoped for, and both opinions suffer from serious legal flaws and inconsistencies.  The cases do contain a silver lining, albeit a thin one: the fact that they recognize principles of federalism pushing back against an ever-expanding federal government.  At least for now, this contentious issue will continue to be decided by the people and their elected representatives at the state level rather than having a redefinition of marriage imposed by nine unelected judges.

In Windsor, the Supreme Court ruled that the Defense of Marriage Act violated the Fifth Amendment right to equal protection because its traditional definition of marriage under federal law failed to include state-sanctioned same-sex marriages. In Hollingsworth, the Supreme Court dismissed an appeal from a district court decision that found a right to gay marriage, on the grounds that Petitioners – proponents of California’s Proposition 8, which defines marriage as between a man and a woman – lacked the standing to defend Proposition 8.

Hollingsworth, for its part, prevented Californians from defending a Proposition that was only recently enacted by a majority of California voters, because their state government was non-responsive.

Similarly, even though any interpretation of Windsor must incorporate Justice Kennedy’s deference to federalism (in this case, the right of a state to define marriage), Windsor’s denial of the federal government’s right to define marriage under federal law is incoherent at best. Justice Scalia is right to characterize Windsor’s opinion as “nonspecific hand-waving,” later explaining that “an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways.”

While Justice Kennedy’s unclear rationale in Windsor is disturbing enough, what’s more disturbing is the opinion’s implicit indication that the Court may still consider nationalizing gay marriage. Justice Kennedy’s rhetoric – which is harsh towards defenders of traditional marriage – could eventually apply equally to a decision over the constitutionality of traditional marriage.  He explains that it is “deemed by the State [that allows for gay marriage, as] worthy of dignity in the community equal with all other marriages,” while “[t]he avowed purpose and practical effect of . . . [DOMA] are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”  The opinion elaborates that DOMA “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,” while “demean[ing] the couple, whose moral and sexual choices the Constitution protects.”

In spite of Windsor’s numerous flaws, there is a thin silver lining.  Although Justice Scalia is right to complain about the tortured logic in Justice Kennedy’s opinion, federalism remained an important foundation of Justice Kennedy’s rationale. As Chief Justice Roberts explained:

“The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area “central to state domestic relations law applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells. Ante, at 17, 20. I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.”

This means a liberal majority of the Court embraced what appears to be (albeit flawed) federalism principles in Windsor, and refused to nationalize a right to gay marriage in both cases. For now at least, the battle over marriage can still be resolved by the democratic processes in the 50 states, and Windor’s deference to states’ rights may still extend to states that define marriage as between a man and a woman.

Admittedly, this tiny victory could be short-lived, and the liberal justices are probably no more than fair-weather fans of federalism. Picking and choosing a legal theory based upon a preferred outcome may be the very definition of judicial activism, but that won’t stop the liberal justices from forgetting about federalism the moment their political preferences dictate otherwise. However, we should still remember how far federalism has come in recent times.  As my colleague Carrie Severino said today:

“[W]e are all federalists now.  Just thirty years ago it would have been wild to suggest that a solid majority of the justices, in two major cases concerning a heated cultural issue, would affirm the idea that the most important decisions about social policy in this country should be made at the state level, by the people and their elected officials.”

This means that despite Justice Kennedy’s indications to the contrary, conservatives can still hold out hope that Chief Justice Roberts is right when he said that the Court’s “analysis [on gay marriage] leads no further [than invalidating DOMA]. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their historic and essential authority to define the marital relation, may continue to utilize the traditional definition of marriage.”


Ammon Simon is Policy Counsel at the Judicial Crisis Network


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