Neil Siegel (Duke University - School of Law) has posted Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion on SSRN. 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.