Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, and Director of the Georgetown Center for the Constitution
Because the logic of Justice Kennedy’s opinion for the majority in Windsor is 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 Scholars” amicus 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) DOMA’s sweeping and indiscriminate application to over a thousand federal statutes could not pass any level of equal protection scrutiny, even the most deferential, because Congress failed to identify a federal interest why 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 Amendment’s Due Process Clause. Here is the logic of his opinion:
In short, under Justice Kennedy’s reasoning, it is the fact that states have recognized same-sex marriage that gives rise to heightened judicial scrutiny (“Here the State’s decision to give this class of persons the right to marry conferred 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 state’s 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 Kennedy’s allusion in Lawrence to 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 using state laws to identify an individual’s liberty interest that justifies subjecting a federal law to 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 in Windsor would 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 one’s state-recognized marriage. 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” in NFIB 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 of Lawrence v. Texas emerge 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 majority’s reasoning.
But the logic of today’s opinion implicitly turns on the absence of any articulated federal interest in disregarding state laws defining marriage. That states are tasked with protecting different interests than the national government is the hallmark of federalism. As Judge Boudin wrote in Massachusetts v. HHS, “[o]ne virtue of federalism is that it permits this diversity of governance based on local choice… Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.” (emphasis added)
For now, federalism wins out in theory as well as in practice. States are free to define marriage as they wish (subject to Equal Protection and Due Process clause restraints), and the fight over “gay marriage” will continue in the states for years, as other litigation winds its way back to the Court. So far, this process of federalism has been beneficial to the cause of same-sex marriage in a number of respects, not least of which is the perceived legitimacy of same-sex marriage in states where it has been adopted by legislation or popular initiative. But whether this bodes good or ill for same-sex marriage, it is a visible demonstration that federalism need not be just for conservatives.