Ginsburg on Federalism and Liberty in Windsor

August 22nd, 2014

Marcia Coyle also posed an excellent question for RBG about the role federalism plays in Windsor–basically none, she argues.

NLJ: When the 5-4 majority in United States v. Windsor struck down the marriage definition in the Defense of Marriage Act, Justice [Anthony] Kennedy’s opinion had two major strands in it: federalism and equal protection. Both sides in the same-sex marriage debate and litigation are relying on Windsor: opponents using federalism; supporters using equal protection. Did the court send conflicting signals in that decision?

GINSBURG: In the federalism theme, marriage and family law have traditionally been the states’ domain and that goes one way. But then there is this eloquent statement about liberty and freedom to be what you are. The predecessor cases, also written by Justice Anthony Kennedy, those were not federalism cases, starting with Romer v. Colorado and then Lawrence v. Texas. I guess if you put those three together you say the main theme is the right to be treated with equal dignity.

I would take exception with RBG’s claim that Lawrence and Romer were not federalism cases. They were, in a very Kennedy-esque way. In Romer, Kennedy stressed how no other state had ever attempted such an unprecedented restriction on liberty. In Lawrence, Kennedy made a very big deal about how states in recent years had eliminated bans on sodomy–here states were conferring liberty on their people. He made a similar move in Windsor, citing the (few) states that had granted people the right to same-sex marriage, as evidence of more conferring of liberty. Here, he views states as the fount for liberty and freedom. It is in this way that federalism promotes freedom. The source of “equal dignity” is the states. This is a point that most people missed from Windsor. I know RBG didn’t buy that part of Windsor, but she did join it.