At long last, I am finally returning to an article I started last year on Windsor and federalism. The 10th Circuit’s decision in Herbert v. Kitchen addresses this issue. I don’t have time to delve into it fully, but I’ll provide its analysis here:
Appellants stress the presence of these federalism concerns in Windsor, which, as the Chief Justice noted in dissent, “come into play on the other side of the board in . . . cases about the constitutionality of state” bans on same-sex marriage. Id. at 2697 (Roberts, C.J., dissenting). The Windsor majority stated repeatedly that the regulation of marriage has traditionally been a state function. See id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” (quotation and citation omitted)); id. (“The states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . .” (quotation and alterations omitted)); id. (“Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”). Appellants urge us to conclude that the “principles of federalism that Windsor would later reaffirm” require us to adhere to the Court’s summary affirmance in Baker.
However, the Windsor Court also explained that the federal government “in enacting discrete statutes, can make determinations that bear on marital rights and privileges.” Id. at 2690. For example, Congress can preempt state marriage laws dealing with insurance proceeds in a federal program, reject sham marriages for immigration purposes even if the marriage is valid under state law, and recognize common-law marriage for the purpose of establishing income-based Social Security benefit eligibility regardless of state law. Id. The Windsor Court concluded it was “unnecessary to decide whether” DOMA “is a violation of the Constitution because it disrupts the federal balance.” Id. at 2692.
Rather than relying on federalism principles, the Court framed the question presented as whether the “injury and indignity” caused by DOMA “is a deprivation of an essential part of the liberty protected by the Fifth Amendment.” Id. And the Court answered that question in the affirmative: The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved. Id. at 2695 (citations omitted).
The opinion also speaks to what I’ve dubbed the laboratories of liberty, rather than laboratories of democracy:
Similarly, the experimental value of federalism cannot overcome plaintiffs’ rights to due process and equal protection. Despite Windsor’s emphasis on state authority over marriage, the Court repeatedly tempered its pronouncements with the caveat that “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” 133 S. Ct. at 2691; see also id. at 2692 (“[T]he 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.”); id. (“The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.”). Our federalist structure is designed to “secure to citizens the liberties that derive from the diffusion of sovereign power” rather than to limit fundamental freedoms. New York v. United States, 505 U.S. 144, 181 (1992) (quotation omitted).
Though, this discussion of “dignity” focuses repeatedly on rights given by New York:
Further, such freedoms support the dignity of each person, a factor emphasized by the Windsor Court. See 133 S. Ct. at 2692 (“The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.”); id. (New York’s “decision enhanced the recognition, dignity, and protection of the class”); id. (“By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.”); id. (plaintiff’s relationship was “deemed by the State worthy of dignity in the community equal with all other marriages”).
The dissent takes a different view:
If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head. See Bond v. United States, 131 S. Ct. 2355, 2364 (2011) (explaining that federalism allows for state responses instead of relying upon the eventuality of a federal policy). Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this (including whether to extend marriage to same-gender couples) is inevitable. See id.; Utah Code. §§ 30-1-1, -2. And given the recent advent of same-gender marriage, Windsor, 133 S. Ct. at 2689, it is hardly remarkable that a state might codify what was once implicit. For the following reasons, I respectfully dissent.