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
CWRU Law Review Same-Sex Marriage Symposium Issue (Forthcoming)
United States v. Windsor may, in the views of some, walk and talk like a federalist duck, but upon closer examination, the decision is not a federalist decision at all, but is, rather, a swan song for federalist-based marriage discrimination.
Leading up to Windsor, federalist-based arguments for marriage equality were advocated by late twentieth-century minimalist movement, which viewed the judiciary as an ineffective agent of social change, and urged the narrowest of constitutional claims, pessimistic about the likelihood of broad individual rights claims to same-sex marriage rights. After Windsor’s release, some have interpreted it as being a federalist decision, due in part to the opinion’s inclusion of a state powers discussion.
This Article describes both how backlash-fearing minimalists were wrong, and how those who read Windsor as a federalist decision are wrong. The Article details an evolution in LGBT rights advocacy from backlash-fearing minimalism to a renewed faith in the courts serving an important role in the protection of constitutional rights. Finally, the Article offers alternative readings of Windsor’s state powers discussion in light of the passage’s surrounding language, including the Court’s pointed invocation of Loving v. Virginia as an applicable federalism-limiting precedent. Whether the state powers discussion in Windsor is read cynically as strategic rhetorical maneuvering or more generously, the decision does not in any sense leave marriage equality up to the states to decide, but rather builds the latest layer of a growing foundation for the ultimate affirmation of same-sex marriage rights by the Supreme Court.
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 ; Last revised: October 5, 2014
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