Is Windsor a Trojan Horse?

April 4, 2013

The Supreme Court in WashingtonLinda Greenhouse has a column today entitled “Trojan Horse,” about the Supreme Court’s conservative justices using United States v. Windsor (the DOMA case) as a vehicle for pushing federalism (i.e., states’ rights). I think she might be on the right track—but as I see it, federalism isn’t the object of the Trojan horse; it’s part of the horse.

I gave a CLE presentation a couple days ago, on the same-sex marriage cases, and as part of that presentation I tried to work through the various possible outcomes in both Windsor and Hollingsworth v. Perry (the Prop 8 case). As Greenhouse notes, one of the possible outcomes in Windsor is that DOMA could be stricken on grounds of federalism: the federal government has no business defining marriage, because it’s strictly a state concern, therefore DOMA is unconstitutional.

Now, to be clear, I’m not sure it’s likely that federalism will get five votes in Windsor. The four “liberals” on the Court will most likely rely on Equal Protection to strike the law, and I’m not yet convinced that all five conservatives are eager to strike it down to begin with. But Justice Kennedy sure seemed to like the federalism angle. And I can see Justice Thomas signing on. And maybe that draws Justice Scalia. And maybe—just maybe—all five decide to run with it.

Why does this matter? Well, it matters, as Greenhouse says, because it signals a resurgence of federalism as a conservative constitutional preoccupation.

But more immediately, it matters because a federalism majority in Windsor could create a real tension with any attempt to strike Prop 8 as unconstitutional in Perry. How do you say marriage is strictly a state issue in one case while striking down a state’s definition of marriage in another case?

In other words, through Windsor and federalism, the Court’s conservatives could lure Justice Kennedy (who seemed uncertain about how to handle Prop 8) into going along with them to uphold the California law as constitutional.

That is the potential Windsor has for being a Trojan horse.

And while I’m not at all ready to predict that this will be the outcome of these two cases—5 votes for striking DOMA under federalism in Windsor and 5 votes for upholding Prop 8 under federalism inPerry—I’m certainly becoming more and more convinced that’s it’s a real possibility.