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

INTRODUCTIONThis paper offers a new take on Windsor v. the United States,1 a case on everyone's mind as this issue goes to print given the Supreme Court's recent grant of certiorari in the same-sex marriage cases.2 Be warned, though. Academics usually come to bury opinions, not to praise them, so I'm stepping out of role by saying something nice about a Supreme Court opinion. But I think there's a bit of mad genius in Windsor and that academics have been too quick to dismiss its insights.While Windsor flouts just about everything we teach our students about constitutional law, it is right to do so. Its author, 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 built to recognizing that reality, that's the doctrine's problem, not Windsor's.Part I describes the opinion and catalogs the many doctrinal and rhetorical puzzles embedded in it. Part II discusses the 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. Part III argues that Windsor is best understood as an effort to "clear the channels of political change" and allow proponents of marriage equality to take full advantage of the discursive benefits of structure.I. WINDSOR'S MANY MYSTERIESMost scholars were happy about the result in the Windsor but looked askance at its reasoning3-the academic equivalent of loving the sinner but hating the sin. Because Windsor struck down the part of the Defensive of Marriage Act ("DOMA")4 that withheld federal recognition from staterecognized same-sex marriages, it is yet-another step in the path toward marriage equality and thus to be celebrated. But Justice Kennedy's reasoning left much to be desired according to those who wrote in the opinion's wake. That's because Justice Kennedy invoked both rights and structure to justify the Court's decision. He spoke of same-sex marriage as a question implicating both equality and liberty, the twin values of the Fifth and Fourteenth Amendments.5 And yet he also cast the decision as vindicating the principles of federalism. By pairing rights and structure in this fashion, Justice Kennedy elicited a collective groan from the academy.For those of you who haven't read the opinion, let me walk you through it. The lead-in of the merits analysis places it squarely in the federalism camp by framing the case as a conflict between state and federal regulatory authority.6 There's a lot of federalism in the opinion as well. Indeed, Kennedy mentions state sovereignty and states' authority over marriage no fewer than eleven times.Just when you start thinking that you've got a federalism opinion on your hands, however, Justice Kennedy switches gears. DOMA, he writes, is constitutionally vulnerable "quite apart from the principles of federalism."7Enter the Fifth and Fourteenth Amendments. Kennedy notes that the states have conferred "a dignity and status of immense import" on same-sex couples and thereby "enhanced the recognition, dignity, and protection of the class in their own community."8 All of Justice Kennedy's favorite themes begin to emerge, as he quotes his own opinion in Lawrence9 and waxes eloquent about the "dignity of that [marital] bond" and New York's "legal acknowledgment of the intimate relationship between two people."10 Aha, you start to think, it's a liberty decision-Justice Kennedy's favorite flavor of constitutional analysis.But wait, there's more, as they say in infomercials. Because equality talk also creeps into the opinion.11 Federal law, Kennedy writes, is "designed to injure the same class the State seeks to protect. …