Windsor Is All Sword

February 21, 2014

Supreme Court LGBTMy fellow blogger, Jeremy Byellin, has a post today about Justice Kennedy’s opinion in Windsor. I don’t have time to respond carefully, with demonstrative quotations from Windsor, but I do want to throw something out there for people to chew on.

First, Byellin clearly adopts the conventional wisdom that says Kennedy’s opinion is of two minds and can be read two ways—on the one hand, as a sword cutting down laws against same-sex marriage, using the two edges of Due Process and Equal Protection; and, on the other hand, as a shield defending federalism and the traditional state’s right to define marriage as it chooses. If you accept this basic view, then Byellin’s interpretation—that Kennedy did this on purpose, to give lower courts the ability to choose which way to go, and to rely on Windsor either way—is kind of nifty. And it makes Kennedy look evenhanded, and maybe even ingenious. According to Byellin, Kennedy gave lower courts a choice and it’s only the shift in political climate that explains why every single court that has decided this issue, since Windsor, has gone only one way.

But I’ve read through Windsor several times now, relevant to my involvement in same-sex divorce and same-sex marriage cases here in Texas, and I think this conventional wisdom is wrong. I don’t think Kennedy’s opinion can legitimately be read two ways, as a sword or a shield. And I certainly don’t think that Kennedy intended it to be both, as Byellin suggests, so that lower courts could rely on it to go either way.

I think Justice Scalia got it right: Kennedy’s opinion is nothing but sword. I think the shield interpretation gets traction only because (a) the opinion isn’t written as clearly as it could’ve been, (b) people don’t read it as carefully as they could, and (c) Chief Justice Roberts, in his dissent, did his best to push the notion that a shield was there to be found.

Indeed, if anyone is to be credited with intentionally and ingeniously trying to give lower courts a basis, in Windsor, for upholding state bans against same-sex marriage, it should be the Chief Justice. Roberts’ dissent contends that Kennedy provided an argument for federalism and for a state’s right to ban same-sex marriage—but it’s noteworthy that no other justice joined the Chief’s opinion. In fact, both Scalia and Justice Alito explicitly rejected this notion, leaving Roberts as just 1 of 9 justices to take the shield interpretation seriously. The only explanation for this (that I can see) is that it was actually Roberts—and only Roberts—who was trying to provide a shield. Not Kennedy.

If you read Kennedy’s opinion carefully, I think it’s more accurate to say that he was extolling the traditional state’s right to define marriage NOT as a basis for defending a state’s ban against same-sex marriage, but only as an additional basis for cutting down the federal law that banned same-sex marriage. In other words, Kennedy’s paean to states’ rights is entirely one-directional. It is not at all about defending a state’s decision to discriminate—it is only about protecting a state’s decision to bestow equality. It was New York’s recognition of same-sex marriage that was at issue in Windsor, and Kennedy was using New York’s historical prerogative—to define marriage as it chooses—as a third edge on a three-sided sword. If New York has decided to recognize same-sex marriage, and to grant that legal status to LGBT couples, then the federal government has no business stepping in to strip LGBT couples of that status. DOMA was therefore cut down as a violation of (1) Equal Protection and (2) Due Process, AND as (3) an impermissible federal impingement on NY’s right to recognize same-sex marriage.

But there’s nothing about defending some other state’s decision ban same-sex marriage. I mean, sure, one can try to cobble together an interpretation that would provide such a shield—as Chief Justice Roberts did, and as many states who are currently defending their bans are doing. But Scalia and Alito were right: Kennedy’s opinion, despite its ostensible nod in that direction, is NOT a shield for federalism. It’s all sword.

For a glimpse at an early version of this argument, which we made in supplemental briefing to the Texas Supreme Court right after Windsor was issued, see section III.B. of this brief