Windsor: Lochnerizing on Marriage?

Abstract

This Article defends three insights from Justice Alito’s Windsor dissent. First, federalism alone could not justify judicially gutting DOMA. As I show, the best contrary argument just equivocates.

Second, the usual equal protection analysis is inapt for such a case. I will show that DOMA was unlike the policies struck down in canonical sex-discrimination cases, interracial marriage bans, and other policies that involve suspect classifications. Its basic criterion was a couple’s sexual composition. And this feature — unlike an individual’s sex or a couple’s racial composition — is linked to a social goal, where neither link nor goal is just invented or invidious.

Third, and relatedly, to strike down DOMA on equal protection grounds, the Court had to assume the truth of a “consent-based” view of the nature of marriage and the social value of recognizing it, or the falsity of a “conjugal” view of the same value and policy judgments.

But as I show, nothing in our constitutional tradition — read as broadly as possible, even by non-originalists — deems the first true or the second false; both are reasonable; and it is historically impossible to ascribe the conjugal view to mere animus.

I conclude that the equal-protection ruling against DOMA Lochnerizes — as would equal-protection rulings against traditional state marriage laws — even if we embrace several scholars’ proposals for expanding equal protection jurisprudence. So to defend Windsor or decisions against traditional state marriage laws, one must justify Lochnerizing or distinguish it.

Keywords: Windsor, same-sex marriage, gay marriage, Lochner, equal protection, gay rights, anti-discrimination, United States v. Windsor