'Amorphous Federalism' and the Supreme Court's Marriage Cases

Abstract

This is a draft of an article forthcoming in the Loyola Law Review Supreme Court issue. It addresses the U.S. Supreme Court’s decisions in Hollingsworth v. Perry and United States v. Windsor, the two cases in the October 2012 term that took up issues of marriage rights of same sex couples. Part I examines the Supreme Court’s opinion in Perry. It summarizes the litigation; teases out divergent views of the relevance of federalism for the Court’s standing ruling in the case; identifies the problematic constitutional underpinnings of the Perry dissenters’ views of federal court standing, which rely on an unjustified constitutional privileging of initiative lawmaking; and explains why Perry is likely to have but limited impact on the Supreme Court’s Article III standing doctrine. Part II then summarizes the Windsor litigation; defends what should have been the self-evident conclusion — though denied by Justice Scalia in his Windsor dissent — that the Supreme Court’s opinion in Windsor is based on equal protection (even if it perhaps also rests on substantive due process protection of “liberty”) and in so doing unpacks its treatment of federalism something Justice Scalia derided as “amorphous” — to show how the majority’s treatment of states’ predominant historical role in marriage regulation fits within an evidentiary framework whereby the Court used it to help establish the impropriety of the purpose of the “Defense of Marriage Act”; and explores some potential ramifications of the decision for challenges to state refusals to recognize same-sex couples’ marriages from other states and to state refusals to allow same-sex couples to marry within their territory.