In Kennedy’s Constitutional Chimera, I laid out my vision of how Justice Kennedy has woven his federalism jurisprudence throughout the last two decades. Two recent articles offer differing takes on Kennedy’s federalism in Windsor.
First, Federalism, Liberty, and Equality in United States v. Windsor by Ernie Young and Erin Blondel (who authored the key federalism brief cited in Windsor) in the Cato Supreme Court Review. Here is the abstract:
This essay argues that federalism played a profoundly important role in the Supreme Court’s decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy’s opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a “muddle,” as many have claimed, Justice Kennedy’s analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.
The article makes the often-ignored point, that I stress in Chimera–the structural protections of the Constitution are just as important to protect individual liberty as the rights provisions.
Federalism principles played a critical role in defining the contours of the equality right at stake, limiting which governmental interests could weigh against that right, and influencing the level of deference that the Court owed to how Congress had weighed those rights and interests. Rather than choosing between federalism and rights-based approaches to the case, Windsor demonstrated how federalism can become an integral part of the rights calculus.
It is already fashionable for Windsor’s admirers and detractors to dismiss Justice Kennedy’s opinion as “muddled” or “incoherent.”10 This essay takes the radical view that the opinion’s reasoning is not only coherent but brilliant—the best explanation yet of how feder- alism and equality doctrine intersect.11
How do these protections work?
Struc- tural principles like federalism and separation of powers exist to protect individual liberty.80 We generally think of this protection in a macro sense: federalism, like separation of powers, helps form a system of checks and balances that makes it more difficult for either level of government to act tyrannically and provides institutional outlets for divergent views. But federalism also operates in a micro sense, shaping individual-rights doctrine. Justice Kennedy’s Wind- sor opinion is, in fact, the best illustration we have of how structural analysis can—and should—inform individual rights.
The authors offer this take on how DOMA infringes on the dignity conferred upon couples like Windsor and Spyer:
Invalidating DOMA hardly ensures that state law will recognize all same-sex relationships. But ensuring that people can rely on state law to settle their family relationships without Congress interfering promotes notice, reliance, and political accountability.95 As Justice Kennedy put it, “DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.”96 Whether or not Edith Windsor and Thea Spyer had a right to have New York recognize their marriage, once it did so they were entitled to rely on that decision.
It was not just that DOMA was mean, in other words. Its mean- ness arose because it sought to put asunder a union that New York has already recognized. That was “strong evidence of a law having the purpose and effect of disapproval of that class [of same-sex cou- ples married under state law].”110 Singling out a particular class for disapproval was an important trigger of “active rationality” review in Romer.111 But it was DOMA’s displacement of the state-law norms that raised the fear of class legislation.112
The second article is “Taking Justice Kennedy Seriously: Why Windsor Was Decided ‘Quite Apart from Principles of Federalism‘” by Helen Knowles, who wrote the definitive book on Justice Kennedy’s jurisprudence. Here is the abstract:
This essay contends that it is misleading to argue, as some commentators have done, that Justice Anthony M. Kennedy’s opinion for the majority in United States v. Windsor (2013) is primarily a federalism decision. In Windsor the commitment made by the Justice is instead very clearly to equal liberty, just as it was in Romer v. Evans (1996) and Lawrence v. Texas (2003). Drawing upon the analysis I employed in The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (2009), I explain this commitment to equal liberty, and the way in which it manifests itself in Windsor. That analysis offers a rebuttal to two strands of the argument that Kennedy’s opinion in Windsor is instead grounded in federalism principles.
Knowles takes a different approach than Young and I. THis section on how Kennedy used dignity is salient.
For, upon closer examination it becomes clear that he generally is not referring to any kind of pre-political dignity, an inherent human dignity that exists quite apart from any form of civil society into which humans may or may not choose to enter. Instead Kennedy primarily emphasizes a form of dignity that only belongs to individuals when the State chooses to confer it upon them. In other words, while commentators are correct that Kennedy’s opinion in Windsor “was based on the idea that it interfered with ‘the equal dignity of same-sex marriages,’”92 that is only part of the quotation. For, what Kennedy actually wrote was: “the equal dignity of same-sex marriages, a dignity conferred by the States.”93
Describing a state as an entity whose sovereignty entitles it to legal protection of its dignity is reminiscent of the idea of sovereign dignity attaching to a monarch. If human dignity is a founding principle of constitutionalism, then a tension arises between the dignity of a state and the human dignity of its populace. Many of the more modern Supreme Court references to state dignity avoid this tension by departing from the monarchical analogy – they describe a dignified state as an entity that rules for the people, not over them. This in part reflects the aforementioned twentieth century evolution in understandings of human dignity – a human rights-based evolution that “changed the meaning of sovereignty” by establishing different responsibilities and liabilities for states.103 Nevertheless, there remain examples of opinions that pay little attention to the fact that “the state exists for the sake of individual human beings, and not vice versa.”104 In his opinion in Windsor, Justice Kennedy frequently employs a concept of dignity that eschews the notion of pre-political, human dignity.
H/T Frank Colucci