Abstract: Heather Gerken comes to praise Justice Kennedy's opinion for Supreme Court in United States v. Windsor.1 I come to praise Gerken's valiant effort to recast Windsor opinion along more convincing lines.2 Gerken does not propose wholesale substitute for Justice Kennedy's analysis. She suggests shiftin emphasis that lends Kennedy's explanation for condemning DOMA surprising jurisprudential significance. Where some us have seen yet another lamentable paean to sovereignty of states, Gerken detects faint hint of nationalist school of federalism that she and others have nurtured in recent years.3 Gerken does not (yet) attach relevant significance to Justice Kennedy's predicate holding that Windsor presented question of DOMA's validity in justiciable posture. I want to contend that there, too, Kennedy may have recognized (implicitly and even more faintly) that values we should associate with federal structure are not well served by sovereignty-based allocations of power.IThe soul of Windsor opinion was Justice Kennedy at his best. As he did in Lawrence v. Texas4 and Romer v. Evans,5 here, too, Kennedy knew gay bashing when he saw it. Quoting Justice Brennan, he declared that federal statute cannot rest on a bare congressional desire to harm politically unpopular group.6 Yet that is precisely what DOMA was. Proponents in Congress conceded it, and everybody watching knew it. The whole point of statute, its very essence to use Justice Kennedy's term, was to demean persons who find love in LGBT relationships. It is this aspect of Windsor opinion on which some lower courts have now relied in part to confirm that freedom to marry extends to same-sex partners.7 The flimsy rationales concocted for denying marriage to LGBT couples only prove what real explanation has always been. People may fear, and they may hate. They may hold intolerant religious commitments. But they cannot constitutionally write their personal anxieties and attitudes into law. This is lasting triumph of Windsor, lonely piece of evidence that there may still be some hope for humankind, after all.Trouble is, Justice Kennedy clouded this long-overdue message with an appeal to state sovereign authority within our federal system.8 Now quoting Chief Justice Rehnquist, he said that 'regulation of domestic relations' is 'an area that has long been regarded as virtually exclusive province of States.'9 And he described marriages that DOMA denigrated as relationships on which State of New York had chosen, in exercise of its traditional authority, to confer protection and dignity going further than Court's prior decisions demanded.10 Gerken acknowledges that this was no casual observation.11 With undeniable care and consistency, Justice Kennedy repeatedly linked constitutional flaw in DOMA to an attempt to injure very class New York [sought] to protect.12 The challenge of Windsor opinion is to account for connection between individual rights Justice Kennedy plainly vindicated and particular state's decision to recognize samesex marriage.It's clear that Justice Kennedy did not mean to say that DOMA simply exceeded some structural limitation on congressional authority. He explicitly declined to decide whether intrusion on state regarding marriage violated the Constitution by disrupt[ing] federal balance.13 That disclaimer brought relief to quarters in which I move, where it had been feared that justices would do right thing for wrong reason.14 Justice Kennedy has figured prominently in Court's notorious decisions striking down enactments of Congress on nebulous, text-free grounds traveling under vague (and outdated) label of dual sovereignty.15 In Windsor, we at least eluded that leaden missile. In point of fact, Kennedy described congressional legislative power expansively, without express objection from dissenters. …
Publication Year: 2015
Publication Date: 2015-03-01
Language: en
Type: article
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