After the Tiers: Windsor, Congressional Power to Enforce Equal Protection, and the Challenge of Pointillist Constitutionalism

The Supreme Court's June 2013 opinion in United States v. Windsor is remarkable for its bypassing of standard equal protection doctrine. In striking down section 3 of the Defense of Marriage Act as unconstitutional discrimination against gays and lesbians, Windsor failed to broach the question whether sexual orientation constitutes a suspect class; indeed, it failed even to perform the "fit" analysis that doctrine demands. Instead, the Court examined the statute and accompanying legislative materials and concluded that section 3 violated the Equal Protection Clause's core command that government action not be based on animus against a disfavored group.Windsor's unusually direct methodology conflicts with the Court's jurisprudence governing Congress's power to enforce the Equal Protection Clause. That jurisprudence, requiring that there be "congruence and proportionality" between enforcement legislation and the constitutional violation the law targets, has relied heavily on the suspect class status of the benefitted group. Until very recently, the results of the congruence and proportionality inquiry were predictable; legislation that enforced the equal protection rights of suspect or quasi-suspect classes would enjoy deferential judicial review, while legislation enforcing the rights of nonsuspect classes would receive a skeptical judicial reception. While recent cases potentially call this template into question, it remains for now a basic feature of the Court's Enforcement Clause doctrine.Windsor, by abjuring suspect class and even "fit" analysis, undermines the Court's approach to the enforcement power. This Article examines the challenge Windsor poses to the Court's Enforcement Clause doctrine. It argues that Windsor requires the Court to reconsider its approach to the congruence and proportionality standard. In particular, it argues that Windsor's more particularized equal protection methodology requires the Court to consider how Congress may legitimately translate such judicial pointillism into enforcement legislation's inevitably broader brushstrokes.It is urgent that the Court consider a new approach to the enforcement power. Congress either has enacted or is poised to enact several significant pieces of enforcement legislation benefitting groups whose suspect class status has not been determined and likely never will. Unless the Court is prepared to exclude Congress from participating in the equality projects the Court itself has embarked on, the Court needs to consider how to harmonize its newfound interest in constitutional pointillism with enforcement legislation's broader brushstrokes.This Article suggests such an approach, one that recognizes Congress's institutional competence and legitimacy to make broad judgments about the same sort of animus the Court found through its more precisely targeted inquiry in Windsor. This approach would not immunize enforcement legislation from judicial review. As explained in this Article, however, this approach does call for a change in the way the Court performs congruence and proportionality review. This Article closes by applying this new approach to a pending piece of enforcement legislation, the Employment Non- Discrimination Act, which would offer federal employment discrimination protections to gay and lesbian workers.INTRODUCTIONThe Supreme Court's decision in United States v. Windsor,1 striking down section 3 of the Defense of Marriage Act (DOMA)2 was remarkable in many ways.3 Yet it was also simply the latest example of the Court's decades-long trend of ignoring suspect class analysis in equal protection cases. The Court now has struck down two laws as violating the equal protection rights of gays and lesbians without even broaching the question whether sexual orientation constitutes a suspect class.4 This avoidance of the suspect class issue is not an idiosyncratic feature of sexual orientation cases; the Court has not performed a serious suspect class analysis - or purported to - in nearly thirty years. …