Windsor, Federalism, and Family Equality

113 Columbia Law Review Sidebar 156 (2013)

UC Davis Legal Studies Research Paper No. 354

25 Pages Posted: 15 Oct 2013 Last revised: 8 Jan 2015

Courtney G. Joslin

University of California, Davis - School of Law

Date Written: October 14, 2013

Abstract

In a 5-4 decision authored by Justice Kennedy, the Court held in Windsor v. United States that section 3 of the Federal Defense of Marriage Act (DOMA) is unconstitutional. Advocates had attacked section 3 on two primary grounds. The principal argument leveled at section 3 was that it violated principles of equal protection by denying one class of married spouses — lesbian and gay spouses — all federal marital benefits.

Section 3 was also attacked on a number of federalism-based grounds. Some advocates pushed a particularly strong federalism variant, arguing that DOMA was unconstitutional because Congress lacked the authority to define or determine family status. I call this the categorical family status federalism argument. Others endorsed a more moderated claim. Under this theory, the fact that a law — here section 3 of DOMA — deviated from the historic allocation of power as between the federal government and the states was simply a basis for applying a more careful level of equal protection scrutiny. Under this theory, the federalism-based concerns were not an independent basis for striking down the law.

This Essay argues that civil rights advocates dodged a bullet when the Windsor Court declined to embrace the categorical family status federalism theory. While its acceptance would have brought along the short-term gain of providing a basis for invalidating DOMA, it also would have curtailed the ability of federal officials to protect same-sex couples and other families.

Keywords: marriage, DOMA, Section 3, federalism, family, family status, parent, child, spouse, Equal Protection, Congress

Suggested Citation

Joslin, Courtney G., Windsor, Federalism, and Family Equality (October 14, 2013). 113 Columbia Law Review Sidebar 156 (2013); UC Davis Legal Studies Research Paper No. 354 . Available at SSRN: https://ssrn.com/abstract=2340226 or http://dx.doi.org/10.2139/ssrn.2340226

Courtney G. Joslin (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Drive
Davis, CA CA 95616
United States
(530) 752-8325 (Phone)

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