Deeply Rooted Principles of Equal Liberty, Not 'Argle Bargle': The Inevitability of Marriage Equality After Windsor

43 Pages Posted: 3 Nov 2013 Last revised: 1 Aug 2014

Date Written: 2014


‘Argle Bargle,’ or Deeply-Rooted Principles of Equal Liberty? The Inevitability of Marriage Equality after Windsor is an article that analyzes United States v. Windsor, the recent Supreme Court same-sex marriage opinion striking down Section 3 of the Defense of Marriage Act. Although Justice Scalia’s dissent in Windsor dismisses the majority opinion, authored by Justice Kennedy, as legalistic argle bargle, this article explains that the Windsor majority opinion is, rather, a principled decision reflecting an evolved understanding of fundamental constitutional values. The article explains why the majority opinion should not be understood as one with a federalist holding that reserves to states the power to deny same-sex couples marriage rights, but is instead an individual-rights decision, based on potent equal liberty principles, that sets a firm foundation for the future affirmation of marriage equality for same-sex couples across the country. Windsor is but the latest of a series of Supreme Court cases applying a more searching form of scrutiny to the subjugation of LGBT citizens and the denial of their fundamental liberties in their most intimate life choices. The longstanding tradition in this country of honoring equal liberty protections against government-imposed subordination and indignities is deeply-rooted in this country’s history, rendering Windsor, a Fifth Amendment case, a powerful precedential force for future challenges to same-sex marriage bans brought under the Fourteenth Amendment’s Substantive Due Process Clause as well as its Equal Protection Clause. In the end, the symbiotic equality and liberty protections established in the Court’s LGBT-rights decisions and other equal liberty cases will inevitably (as Justice Scalia’s dissent warns) culminate in a future broad decision finally affirming equal marriage rights and protections for members of same-sex couples and their families across the country.

Keywords: Constitutional law, Windsor, LGBT, Scalia, Equal liberty, Equal Protection, Due Process, Fifth Amendment, Fourteenth Amendment, Same-sex Marriage

Suggested Citation

Marcus, Nancy C., Deeply Rooted Principles of Equal Liberty, Not 'Argle Bargle': The Inevitability of Marriage Equality After Windsor (2014). Deeply Rooted Principles of Equal Liberty, not “Argle Bargle”: The Inevitability of Marriage Equality After Windsor, 23 Tul. J. L. & Sexuality 17 (2014). . Available at SSRN:

Nancy C. Marcus (Contact Author)

Lambda Legal ( email )

Los Angeles, CA
United States

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