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

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