In a new article, Neil Seigel contends that federalism in Windsor was just a “Bickelian devices for managing the processes of constitutional change.” In other words, this does not portend an actual, and important doctrinal change in Windsor. Here is the abstract:
This Article asks what the U.S. Supreme Court’s opinion in United States v. Windsor stands for, and finds that it exemplifies doctrine in motion during a time of social and legal change. According to Chief Justice Roberts, the Court invalidated Section 3 of the Defense of Marriage Act (DOMA) because it inferred animus from Congress’s extraordinary intrusion into an area central to state domestic relations law. Like some commentators, Roberts construed the Court’s emphasis on what might be called “extraordinary” evidence of animus as not impugning the authority of states to ban same-sex marriage. The Article shows that such a reading can account for much of the Court’s language, but not for the opinion as a whole given the Court’s emphasis on DOMA’s purposes, effects, and social meanings — none of which seem limited to DOMA.Justice Scalia read the majority opinion as turning on what might be called “ordinary” evidence of animus. On that interpretation, which many commentators endorse, only a desire to harm same-sex couples can explain denying them the same dignity that opposite-sex couples enjoy by being able to marry. This Article shows that such a reading has force, but that there are limits to its explanatory power given the Court’s emphasis on DOMA’s interference with state decisions to allow same-sex marriage. The opinion resists any dispositive interpretation; it preserves a Delphic obscurity.This Article seeks to understand why the Court’s opinion is written that way by examining its most puzzling aspects: its invocation of state control over domestic relations to qualify its embrace of the equal dignity of same-sex couples; its selective use of state developments in the service of living constitutionalism; and its novel, unnecessary use of the breadth of a federal law as evidence of animus. The Article reads Windsor as an exemplar of a phenomenon that is easily overlooked or misunderstood, but that becomes apparent once doctrine is understood dynamically rather than statically. Windsor is what judicial opinions may look like in times of transition, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such periods, federalism rhetoric — like manipulating the tiers of scrutiny and the justiciability doctrines — may be used as a way station toward a particular later resolution.
For reasons I’ve explained elsewhere, I think the arc of federalism jurisprudence in Justice Kennedy’s opinions from Romer to Lawrence to Windsor (and Bond and a few others) is quite significant. Federalism is not just a means, but a means to an important ends of protecting liberty.
Siegel takes the opposite position:
The Windsor Court’s various invocations of federalism are not attributable simply to Justice Kennedy’s idiosyncratic ways of expressing his commitment to limited federal power and to residual state authority, or to his potential ambivalence about same-sex marriage. Indeed, the voting alignment in Hollingsworth v. Perry37 raises the possibility that Kennedy is no longer the median Justice regarding the constitutional rights of same-sex couples. Rather, the Windsor Court’s uses of federalism rhetoric are probably best understood as reflecting a statesmanlike effort to encourage but not to coerce for the time being—to allow continued deliberation and litigation over same-sex marriage in the states, and to move that deliberation toward greater equality for same-sex couples and their children. The Court’s use of federalism rhetoric as a way station thus shares certain similarities with its failure faithfully to apply the tiers of scrutiny in select equal protection cases and its manipulation of justiciability doctrines.38 As just noted, the Windsor majority itself implausibly declared that Section 3 of DOMA flunked rational basis review. And as explored below,39 certain Justices in the Windsor majority may have responded to prudential concerns in Hollingsworth. The phenomenon identified by this Article is limited neither to Windsor nor to federalism. As the Court is discovering, however, the federalism approach may result in a stronger nudge.
Eventually, I will have the time to finish my article on Kenendy, Windsor, and Federalism. I am somewhat eager to incorporate Bond into the opinion.