Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion
64 Pages Posted: 15 Feb 2014 Last revised: 29 Dec 2014
Date Written: July 10, 2014
This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism reasoning and rhetoric — like declining to announce the level of scrutiny and appearing to misapply the justiciability doctrines — may be used as a way station toward a particular later resolution.
Keywords: Windsor, same-sex marriage, federalism, equal protection, Bickel, passive virtues
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