When Quacking Like a Duck is Really a Swan Song in Disguise: How Windsor's Federalism Analysis Sets the Stage for the Demise of Federalism-Based Marriage Discrimination
Nancy C. Marcus
Indiana Tech Law School
December 5, 2013
23 Tulane Journal of Law & Sexuality (Forthcoming)
Things are not always as they seem. The adage, “if it walks like a duck and quacks like a duck, it must be a duck,” is far from a fail-proof test, as seen from its earlier days, when the “duck test” was reportedly used to persecute suspected Communists during the McCarthy Era. Today, I propose, the “duck test” is just as fallible when applied to the Supreme Court’s latest LGBT rights opinion, United States v. Windsor, which struck down Section 3 of the federal Defense of Marriage Act as unconstitutional. Where duck = federalism, I suggest that, while Windsor was widely expected to be a federalist decision, and was interpreted as a federalist decision by some after its release, upon closer examination, Windsor is not a federalist duck at all, but is, rather, a swan song for federalist-based marriage discrimination.
This article traces federalist-based advocacy for marriage equality to the late twentieth-century minimalist movement, viewed the judiciary pessimistically as an ineffective agent of social change, and urged that if civil rights litigators must turn to the courts for social justice in politically controversial areas, they stick to unambitious and narrow arguments. Even after the Supreme Court’s LGBT-rights decisions Romer v. Evans and Lawrence v. Texas, minimalists discouraged LGBT-rights litigation. Similarly, as DOMA challenges became inevitable, there was a push to frame constitutional challenges in terms of federalism, which was viewed as more strategically prudent than broader individual rights arguments. Even after Windsor was decided on broad substantive due process and equal protection grounds, rather than on Tenth Amendment federalism grounds, some persisted in reading it as a federalist opinion, influenced in that reading by the minimalist movement.
The article explains both why backlash-fearing minimalists were wrong about the success of LGBT marriage equality, and why the reading of Windsor as a federalist decision is erroneous. The article describes how minimalist forecasts of doom for LGBT rights litigation have been proven wrong through successes in courts, legislative battles, and public opinion polls. The article details an evolution from backlash-fearing minimalism to a renewed faith in the courts serving an important role, along with legislative and educational measures, in the protection of fundamental and equal rights. Finally, examining Justice Kennedy’s majority opinion in Windsor in more detail, I explore different ways to interpret the strategic placement of its federalism discussion side-by-side with a Loving v. Virginia citation, for example. I offer that on the one hand, the opinion may be read cynically as rhetorical maneuvering, not unlike other historic examples of such strategic artifice used to co-opt the arguments of one’s opposition. On the other hand, however, I suggest that Windsor, as with past opinions, represents a principled, deliberate foundation building, which adds a layer of a growing foundation of equal liberty jurisprudence, established with doctrinal integrity to ensure greater protections for individual rights over time.
Keywords: Windsor, minimalism, federalism, 5th Amendment, same-sex marriage, LGBT, marriage quality, The Hollow Hope, jurisprudence, substantive due process, equal protection, equal liberty, libertyAccepted Paper Series
Date posted: December 7, 2013
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