Windsor's Mad Genius: The Interlocking Gears of Rights and Structure

27 Pages Posted: 16 Feb 2015

Date Written: February 15, 2015

Abstract

This paper offers a new take on Windsor v. the United States, a case much on our minds now that the Supreme Court seems poised to decide on the constitutionality of same-sex marriage bans. The essay argues that while Windsor flouts just about everything we teach our students in constitutional law, it is right to do so. Justice Kennedy blurs the lines between federalism, liberty, and equality, and he blurs the lines between structure and rights. The genius of the opinion is that it recognizes that rights and structure are like two interlocking gears, moving the grand constitutional project of integration forward. While the doctrine isn’t geared to recognizing that reality, that’s the doctrine’s problem, not Windsor’s.

The paper begins by describing Windsor’s many doctrinal and rhetorical mysteries. In attempting to explain those mysteries, the article focuses on a core but neglected truth at the heart of the opinion – the fact that rights and structure work together to move debates forward, with federalism compensating for the shortcomings of the First Amendment. Indeed, the paper claims that Windsor is best understood as an effort to clear the channels of political change by allowing proponents of marriage equality to take full advantage of the discursive benefits of structure and the regulatory integration of state and federal administrative regimes. While there have been many articles trying to guess what Justice Kennedy was hinting when he wrote Windsor, this read best fits with what the opinion actually says; it’s an effort at construction and interpretation, not divination.

Keywords: Same-sex marriage, federalism, dignity, equality, rights, structure, Windsor

Suggested Citation

Gerken, Heather, Windsor's Mad Genius: The Interlocking Gears of Rights and Structure (February 15, 2015). Boston University Law Review, Vol 95, 2015; Yale Law School, Public Law Research Paper No. 529. Available at SSRN: https://ssrn.com/abstract=2565504

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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