Same-sex marriage, federalism, and judicial supremacy.

• Author: Nagel, Robert F.

ABSTRACT

Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly--if perversely--related to this limited appreciation.

Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when it presents no serious challenge to national authority. Indeed, the cases indicate that he is deeply fearful that a robust system of federalism would be dangerous to nationhood. Furthermore, he sees national authority as fragile in part because he has long understood the Court's constitutional decisions, a principal symbol of nationhood, as being based only loosely in conventional legal authority and, therefore, to be highly contestable. The Windsor opinion's imprecise argumentation reflects this skepticism about the conclusiveness of conventional legal authority.

Perversely, it is this same skepticism that has led Justice Kennedy to support a strong version of judicial supremacy in cases like Casey v. Planned Parenthood, where a state contested the Court's interpretative power, and Brown v. Plata, where a state undermined a federal court's remedial authority. Thus, Windsor cannot realistically be viewed as being based on respect for state authority over the issue of marriage; rather, Justice Kennedy's opinion in Windsor insists that Congress should have deferred to New York's definition of marriage because that definition reinforced, rather than challenged, the Court's earlier pronouncements on gay rights in Romer v. Evans and Lawrence v. Texas. In short, Windsor rests on an exalted view of the need for the Supreme Court's supremacy and at the same time exhibits the reasons for self-doubt that underlie this exalted view.

CONTENTS INTRODUCTION I. JUSTICE KENNEDY FAVORS STATE AUTHORITY IN CASES INVOLVING INCONSEQUENTIAL CONFLICTS WITH NATIONAL AUTHORITY II. JUSTICE KENNEDY FAVORS NATIONAL AUTHORITY IN CASES INVOLVING SIGNIFICANT CONFLICT BETWEEN STATE AND NATIONAL AUTHORITY CONCLUSION INTRODUCTION

Justice Anthony Kennedy's opinion for the Court in United States v. Windsor (1) is notable for a series of doctrinal feints. (2) The opinion relies heavily on equal protection precedents, but in the end these are used to establish a value ("equal liberty") ascribed to the Due Process Clause. Similarly, the opinion shifts from a deferential standard of review to a highly suspicious assessment of legislative motivation. Most glaring is Justice Kennedy's, on-again, off-again reliance on the principle of federalism. After an extended discussion suggesting that regulation of marriage might be a reserved power of the states, he concludes that it is unnecessary to decide this question because state authority over marriage is "of central relevance in this case quite apart from principles of federalism." (3) The opinion then argues that Congress's "unusual deviation" from accepting a state's definition of marriage is evidence of illicit disapproval of same-sex marriage. (4)

It might seem to follow from this emphasis on state authority over marriage that Justice Kennedy would be required also to respect traditional state definitions of marriage in a case challenging the constitutionality of such laws. Perhaps, this is why Chief Justice Roberts comments in his dissent that "it is undeniable" that the Court's judgment is "based on federalism." (5) In contrast, Justice Scalia argues that Justice Kennedy is locked in, not to deference to state judgments about marriage, but to condemnation of state laws limiting marriage to heterosexual couples. (6) The Roberts position, I would guess, will be dismissed by cynics and realists who think that in Windsor Kennedy is simply enforcing his own strong views about the centrality of the right to sexual freedom and his obvious sympathy for homosexuals. Legalists, however, might reply that Kennedy's emphasis on deference to state authority cannot be cavalierly dismissed in light of his strong record favoring a vigorous role for states in our federal system. (7)

One point I wish to make in this brief Article is that, despite the state sovereignty rhetoric found in many of Justice Kennedy's decisions, he supports only a weak version of the principle of federalism. In fact, taken as a whole, Justice Kennedy's record demonstrates a deep fear of political disintegration; therefore, his support for federalism is limited to circumstances where the assertion of state power does not seriously challenge--or in some way actually enhances--the authority of the central government. The notion that he would allow a deeply divisive issue like same-sex marriage to be decided in a variety of ways in states across the country is inconsistent with his deeply held view about the need for unchallenged, central authority. A larger point follows from this. Those doctrinal feints in Windsor, including Justice Kennedy's confused and ambivalent reliance on federalism, are closely related to an aspect of the decision that is perfectly clear: his commitment to judicial supremacy. Perversely, the looser the conception of law, the more crucial seems that institutional apex of central authority, the Supreme Court.

1. JUSTICE KENNEDY FAVORS STATE AUTHORITY IN CASES INVOLVING INCONSEQUENTIAL CONFLICTS WITH NATIONAL AUTHORITY

   In a surprising number of federalism cases, the assertion of state authority involves no threat or only a minor threat to national authority. Indeed, it is possible for the assertion of state authority to enhance aspects of central authority. Consider, for example, Hollingsworth v. Perry, (8) the case challenging California's constitutional provision prohibiting same sex marriage. Justice Kennedy argued that the Court should have deferred to the state law judgment that proponents of a state initiative should be authorized to defend that initiative in court, a position that would have allowed the Supreme Court to resolve the constitutional issues raised by traditional state marriage laws. (9) To take a different example, when the Court, in an opinion authored by Kennedy, invalidated the application of a prior version of the Religious Freedom Restoration Act (10) to the states, the Court protected state autonomy to impose reasonable and nondiscriminatory regulations on religious behavior. In doing so, however, it also protected the authoritativeness of its own interpretation of the Free Exercise Clause.

   More commonly, protecting state authority does challenge central authority--but only marginally. Despite the uproar among nationalistic legal scholars caused by the Court's...