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Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion

64 Pages Posted: 15 Feb 2014 Last revised: 29 Dec 2014

Neil Siegel

Duke University School of Law

Date Written: July 10, 2014

Abstract

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

Suggested Citation

Siegel, Neil, Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion (July 10, 2014). 6 Journal of Legal Analysis (2014). Available at SSRN: https://ssrn.com/abstract=2396179

Neil Siegel (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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