Teaching United States v. Windsor: The Defense of Marriage Act and Its Constitutional Implications

• Date: 01 June 2014
• DOI: http://doi.org/10.1111/jlse.12016
• Published date: 01 June 2014

Journal of Legal Studies Education

Volume 31, Issue 2, 249–289, Summer 2014

Teaching United States v. Windsor:

The Defense of Marriage Act and Its

Constitutional Implications

Corey Ciocchetti∗

I. Preface | Teaching Note

Students are captivated by contemporary, high-profile Supreme Court cases.1

They recognize the litigants, debate the public policy, sociological, and eth-

ical implications of the case in school, and discuss their thoughts with their

peers and parents outside of class. I incorporate very recent and noteworthy

Supreme Court cases in my basic business law courses with great success.

My students are more engaged and prepared than when I assign a textbook

chapter—they prefer to track the law as it develops in real time. This engage-

ment and preparation helps them recall the arguments and legal theories

well past the final examination. My approach is simple and straightforward. I

assign the entire opinion as well as a background article that broadly evaluates

the legal and public policy issues in the case.2As a class, we then synthesize the

critical issues (including the business implications) via lecture, recitation, and

evaluation of key case passages and class discussion. The students’ excitement

∗Associate Professor, Department of Business Ethics and Legal Studies, University of Denver.

1More specifically, students are keenly interested how the law and the real world intersect. See,

e.g., William J. McDevitt, Active Learning Through Appellate Simulation: A Simple Recipe for a Business

Law Course, 26) J. Legal Stud. Educ. 245–62, 246–47 (2009) (discussing a way to help students

understand the appellate process); and Tanya M. Marcum & Sandra J. Perry, It’s Not Easy Being

Green: Bringing Real Life to the Undergraduate Legal Environment of Business Classroom,27J. Legal

Stud. Educ. 81–104, 81–82 (2010) (discussing the importance of using real-world cases and

issues in the classroom).

2It is crucial to pick opinions that are not excessively lengthy or boringly opaque. I find that

opinions less than five years old and between ten and forty pages are ideal. However, students

are willing to read more when high-profile cases are assigned. Finally, it is important to assign

the whole opinion. The context of the case is key, and students reading only a few pages or

sections tend to miss the context completely.

C2014 The Author

Journal of Legal Studies Education C2014 Academy of Legal Studies in Business

249

250 Vol. 31 / The Journal of Legal Studies Education

is palpable, and I am often forced to cut off their discussion/questions in or-

der to move on to other topics. This is a professor’s dream—especially with

undergraduates enrolled in a required class. This article represents the back-

ground material I utilize along with the United States v. Windsor case to teach

Constitutional Law (particularly federalism, due process, and equal protec-

tion) and the legal debate surrounding same-sex marriage.3

This article serves two primary goals. First, professors may assign it as

background reading before or after a Constitutional Law lecture. Prelecture

distribution provides students with a solid background and facilitates under-

standing of tough legal/policy concepts. Postlecture distribution allows the

Supreme Court opinions to speak for themselves, allows students to ponder

any implications of the rulings without outside influence, and allows the

article to serve as reinforcement. The footnotes can easily be converted to

endnotes if the references are too cumbersome. Second, professors may refer

to the article as they prepare to teach same-sex marriage or Constitutional

Law more generally. This article is designed for professors to tailor their lec-

tures to the constitutional law issues most pertinent in their syllabus. Some

may choose to focus on same-sex marriage and its legalization/prohibition

at the state level. To that end, this article possesses one of the most up-to-date

reference guides on same-sex marriage in the states. Other professors may

choose to focus on the Constitution and its Fifth and Fourteenth Amend-

ments. This article discusses the Due Process and Equal Protection Clauses

in depth. Also discussed are the Full Faith and Credit Clause (FF&C Clause)

and the standing and incorporation doctrines. Finally, in the interest of fair-

ness, many professors evaluate both the majority and dissenting opinions and

the lower court opinions in these important cases—a task this article under-

takes as well. This article will encourage students to plug into the provocative

issues in the Windsor case and learn essential constitutional law concepts

simultaneously.

II. Same-sex Marriage in America

The legalization of same-sex marriage first hit the nation’s radar screen four

decades ago. In 1970, two male University of Minnesota students applied for

3There are many fine background articles on high-profile Supreme Court case that are digestible

by students. The first place I look is SCOTUSBlog.com where top constitutional law scholars,

Supreme Court advocates, and the media post articles.

2014 / Teaching United States v. Windsor 251

a marriage license.4Minnesota’s marriage laws did not specifically exclude

same-sex marriages.5However, the county clerk denied the license under

the presumption that only heterosexual marriage was allowed under a law

that had the words “husband and wife” and “bride and groom” scattered

throughout.6The couple sued the state, arguing that the denial violated

their fundamental right to marriage and their due process and equal pro-

tection rights under the federal Constitution.7On appeal, the Minnesota

Supreme Court denied their claims and went as far as to declare that the “in-

stitution of marriage as a union of man and woman, uniquely involving the

procreation and rearing of children within a family, is as old as the book of

Genesis.”8The case made its way to the Supreme Court of the United States

(SCOTUS)9where, in Baker v. Nelson, the justices unanimously dismissed the

case holding that the issue did not present a “substantial federal question.”10

This meant that Minnesota was allowed to define marriage as it wished, and

the clerk was not required to issue the marriage license. This would be the

last time the SCOTUS squarely deliberated the issue of same-sex marriage

until 2013 and the cases of United States v. Windsor11 and Hollingsworth v. Perry

(concerning the defense of a California ballot proposition limiting marriage

to heterosexual couples).12 But, this lack of activity at the nation’s highest

court did not mean that the national debate over same-sex marriage had

simmered.

Between the 1970s and the 1990s, most of the same-sex marriage head-

lines were made outside of the legal system. Berkeley, California, became

4See Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971).

5See id.

6See Justin Dyer, The Legacy of Bakerv.Nelson,First Things (Feb. 6, 2013),

http://www.firstthings.com/onthesquare/2013/02/the-legacy-of-baker-v-nelson.

7See Baker v. Nelson, 191 N.W.2d 186, 1186 (Minn. 1971).

8Id.

9See generally Baker v. Nelson, 409 U.S. 810 (1972).

10Id. at 810. This may indicate that the justices did not believe that the federal Constitution

protected same-sex marriage.

11See generally United States v. Windsor, No. 12–307, 2013 U.S. LEXIS 4921 (June 26, 2013).

12See generally Hollingsworth v. Perry, No. 12–144, 2013 U.S. LEXIS 4919 (June 26, 2013).