Windsor beyond marriage: due process, equality & undocumented immigration.

AuthorO'Rourke, Anthony

TABLE OF CONTENTS INTRODUCTION I. WHAT WINDSOR SAYS A. Windsor's Liberty/Equality Framework B. The Liberty Interest in Windsor C. Proposition One: The Relevance of Unusual Discrimination D. Proposition Two: The Relevance of Legislators' Motivations II. DUE PROCESS AND UNDOCUMENTED IMMIGRANTS' BAIL A. The Insights and Limitations of Equal Protection B. The Insights and Limitations of Due Process III. APPLYING WINDSOR A. Searching for Unusual Discrimination B. Weighing Legislators' Motivations CONCLUSION INTRODUCTION

The Supreme Court's merits holding in United States v. Windsor (1) is unquestionably significant, but nobody is quite sure how so. Few have described the majority's decision striking down Section 3 of the federal Defense of Marriage Act (DOMA) (2) as uncharitably--or as memorably--as Justice Scalia when he called it a "disappearing trail of ... legalistic argle-bargle." (3) Even among those who celebrate Windsor's outcome, however, the case's holding and doctrinal implications are subjects of sharp disagreement. (4)

Of particular interest to legal observers is this passage from the majority opinion: "While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved." (5) To quote Justice Scalia, "what can that mean?" (6)

This Article suggests what "that" might mean, and shows in concrete terms how one can apply Windsor to clarify other doctrinally confused areas of due process law. (7) The majority opinion in Windsor, I contend, articulated a conception of due process that is informed by, but analytically distinct from, the Court's equal protection jurisprudence. So interpreted, Windsor's holding is consistent with the theory developed by Laurence Tribe and Kenji Yoshino, among others, (8) that the Court is gradually synthesizing its due process and equal protection doctrines to recognize what Yoshino calls "liberty-based dignity claim[s]" rooted in the Due Process Clauses. (9) Indeed, early commentators were quick to recognize that Windsor easily reads as a "dignity" case. (10) There has been little discussion, however, of how Windsor 's holding might clarify the doctrinal stakes of the dignity framework.

Windsor offers an occasion for a much-needed practical contribution to the burgeoning dignity literature. While Tribe and Yoshino have created a theoretically rich and intellectually generative framework for understanding the Court's liberty/equality jurisprudence, scholars have done little to show how legal practitioners can apply that jurisprudence. For lawyers who cannot simply discard earlier precedents in favor of a more satisfying dignity framework--that is to say, for any lawyer not sitting on the United States Supreme Court--the current scholarship offers little guidance. Indeed, Jack Balkin has raised the possibility that, in Windsor, the Supreme Court dispensed with any predictable conception of due process or equal protection and signaled that it "will simply proceed on a case-by-case basis, relying on the unifying concept of dignity, which straddles liberty and equality concerns." (11) Such doctrinal slipperiness should alarm those who applaud recent triumphs of gay rights advocates in the Supreme Court, (12) but lament the stagnation and regression of constitutional protections for other groups. (13)

But Windsor 's holding, I argue, can do more than simply advance the interests, on a case-by-case basis, of groups that find favor with Justice Kennedy. To be sure, the Windsor majority offered little guidance as to how its decision should be prospectively applied. Indeed, although the majority states that DOMA violates both "due process and equal protection principles," its reasoning has left some confused as to how these principles informed the Court's decision. (14) But while Windsor cannot be used to predict how the Supreme Court will decide constitutional questions beyond same-sex marriage, one can distill principles from the majority opinion that can be used to independently analyze and resolve such questions. (15) To do so, one must look beyond what the Windsor majority said about the constitutional principles it relied upon and examine the logic of what the majority did in striking down [section] 3 of DOMA. (16)

By adopting such an approach, this Article constructs a rehabilitative reading of Windsor that builds upon the theoretical insights of the dignity literature, but can be applied in other due process contexts to advance the interests of other subordinated groups. The argument proceeds in three Parts. In Part I, I distill two practical, doctrinal propositions from Windsor's synthesis of due process and equal protection doctrine. In Part II, I set the stage for extending Windsor's holding beyond gay rights by describing a constitutional problem that has received little judicial or scholarly attention concerning the use of state criminal procedure to regulate immigration. (17) In Part III, I show how the doctrinal propositions I distill from Windsor can be used to address this problem.

As to Windsor 's doctrinal propositions, the case offers two pieces of guidance for courts evaluating due process claims that have a significant equality dimension. First, a law that threatens a liberty interest is more likely to violate due process if it selectively imposes a historically novel burden on a subordinated group. (18) This proposition, if correct, suggests that a modest revision to the dignity literature is in order. Specifically, Yoshino has argued that, in recognizing a "liberty-based dignity" claim in Lawrence v. Texas, the Court embraced a conception of due process that "struck the chains of history from due process jurisprudence." (19) Such end-of-history claims may be premature, however. Windsor 's holding is predicated on a historical analysis of how power has been allocated between the federal government and the states with respect to regulating marriage. (20) In evaluating DOMA's constitutionality, the majority examines both the states' historical role in defining the marital relation and the federal government's historical restraint in this area of law. This examination yields two interrelated doctrinal innovations with respect to how the Court uses history to evaluate due process claims. First, in areas of law that states have traditionally regulated, a state may legislate in ways that strengthen its citizens' constitutionally protected liberty interests. (21) Second, and relatedly, if the government infringes a liberty interest by intervening in an area of law that it has not traditionally regulated, courts will be particularly skeptical of the government's justifications if the intervention happens to harm a politically subordinated group. (22)

But what does it mean to say that a court will be "particularly skeptical" of a government's asserted justification? The second proposition this Article distills from Windsor speaks to that issue. Specifically, if a law selectively targets a subordinated group, courts should assign significant weight to evidence in the legislative record suggesting that the law was enacted for a purpose that violates due process. (23) The relevance of legislative history as to whether a law violates the Constitution's due process or equal protection guarantees has long been unclear. (24) One question that has triggered particular confusion is the extent to which the constitutionally impermissible motivations of individual legislators should be ascribed to the legislature as a whole. (25) Windsor helps resolve this question by showing that when a due process claim has a significant equality dimension, individuals' motivations matter. (26)

As for a serious constitutional problem that Windsor 's holding can help resolve: three states have recently enacted laws that categorically deny bail to undocumented immigrants who have been arrested for a broad range of felonies. (27) These laws raise obvious equality concerns, as they forbid courts from granting bail to undocumented immigrants, but permit (and, for most cases, require) them to make individualized bail determinations for all other defendants. It is difficult, however, to evaluate the constitutionality of these laws under the Court's equal protection doctrine with any degree of analytical rigor. (28) The Court's due process jurisprudence, by contrast, offers a relatively tractable framework for analyzing the laws. (29) Specifically, under United States v. Salerno, a bail restriction violates due process if Congress expressly intended for it to be punitive; (30) otherwise the restriction will satisfy due process if it has a "legitimate regulatory goal" and is not "excessive in relation" to that goal. (31)

However, several questions concerning Salerno's scope caused confusion for the only federal appellate court that has reviewed one of these laws. In a recent opinion, (32) which is being reconsidered en banc as this Article goes to print, (33) the Ninth Circuit upheld a provision of the Arizona constitution that categorically denies bail to any undocumented immigrant arrested for a broad range of felonies, (34) some of which are relatively trivial. (35) Applying the doctrinal propositions identified in Part I of this Article, one can clarify Salerno's due process doctrine and construct a more analytically satisfying account than the Ninth Circuit panel was able to provide as to whether the Arizona bail law satisfies due process. (36)

As the analysis in this Article shows, one does not need to break new constitutional ground to show how laws that categorically deny bail to undocumented immigrants run afoul of the Due Process Clause. I do not argue, for example, that the Ninth Circuit faced a constitutional problem it could not solve without recourse to a controversial...

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