When quacking like a duck is really a swan song in disguise: how Windsor's state powers analysis sets the stage for the demise of federalism-based marriage discrimination.

• Author: Marcus, Nancy C.

ABSTRACT

United States v. Windsor may, in the views of some, walk and talk like a federalist duck, but upon closer examination, the decision is not a federalist decision at all but is, rather, a swan song for federalist-based marriage discrimination.

Leading up to Windsor, federalist-based arguments for marriage equality were advocated by the late twentieth-century minimalist movement, which viewed the judiciary as an ineffective agent of social change and urged the narrowest of constitutional claims, pessimistic about the likelihood of successful broad individual rights claims to same-sex marriage rights. After Windsor's release, some have interpreted it as being a federalist decision, due in part to the opinion's inclusion of a state powers discussion.

This Article describes both how backlash-fearing minimalists were wrong and how those who read Windsor as a federalist decision are wrong. The Article details an evolution in LGBT rights advocacy from backlash-fearing minimalism to a renewed faith in the courts serving an important role in the protection of constitutional rights. Finally, the Article offers alternative readings of Windsor's state powers discussion in light of the passage's surrounding language, including the Court's pointed invocation of Loving v. Virginia as an applicable federalism-limiting precedent. Whether the state powers discussion in Windsor is read cynically as strategic rhetorical maneuvering or more generously, the decision does not in any sense leave marriage equality up to the states to decide but rather builds the latest layer of a growing foundation for the ultimate affirmation of same-sex marriage rights by the Supreme Court.

Contents Introduction I. The Minimalist Movement's Influence on Federalism Focused Strategy in DOMA Challenges A. Backlash Fears and Hollow Hopes: The Movement Toward Minimalism B. How the Minimalist Movement Led to a Push for Federalist Anti DOMA Arguments C. The Doctrinal Bases for the Plaintiffs' Argument and the Court's Holding in Windsor II. Why Windsor Is Not a Federalist Decision A. About Those "Seven Full Pages B. Windsor's Loving Reminder of the Primacy of Individual Rights C. Federalism Discussed Solely in Context of Evaluating DOMA's Stated Justifications D. Textualist Reading of Unambiguous Holding Reveals an Individual Rights Fifth Amendment Holding, Not a Federalist Tenth Amendment Holding E. Court Details Examples of Federal Legislation in Area of Marriage III. Why, Despite Quacking Like a Duck, Windsor Is Actually a Swan Song for Federalist-Based Marriage Discrimination IV. Beyond Minimalism: Foundation-Building Jurisprudence as a Giant Leap, Not Small Step, Toward Significant Evolutions in Rights Protections INTRODUCTION

The adage, "if it walks like a duck and quacks like a duck" is a familiar one with various formulations and contested origins. Some attribute "the duck test" to "celebrated 'Hoosier Poet'" James Whitcomb Riley, who purportedly wrote over a century ago, "[w]hen I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird'a duck." (1) And yet, some attribute a less benign history to the duck test, tracing its roots to a McCarthy era anti-Communist labor union activist, quoted as saying in the height of the "Red Scare" targeting perceived Communists in the United States, "A door-opener for the Communist party is worse than a member of the Communist party. When someone walks like a duck, swims like a duck, and quacks like a duck, he's a duck." (2)

In retrospect, it is now well known that not everyone who was charged with quacking like a Communist during the McCarthy Era was in fact a Communist--far from it. (3) The Red Scare highlighted the reality that things are often not what they seem. Indeed, as history has revealed after the fact, even those who persecuted perceived Communists in the McCarthy Era were, themselves, not what they seemed--patriotic Americans protecting liberty. Rather, they were misguided (to put it kindly) politicians who violated the constitutional rights and liberties of those they charged as anti-American Communists. (4)

Which is to say, not to ruffle the feathers of any patriotic Communist-hating duck hunters, but the "walks like a duck, quacks like a duck" adage is one that should not be used liberally but should be taken with a grain of context and awareness of its malleability.

This Article explores a different context for the application of the duck test: United States v. Windsor, (5) the Supreme Court's historic marriage equality decision striking down Section 3 of the Defense of Marriage Act (DOMA), which codified a federal definition of marriage that excluded same-sex couples, even if their marriages were recognized in their states of domicile. (6) In Windsor, Edie Windsor, the surviving widow in a same-sex marriage that was recognized in the couple's home state, was slapped with a $363,053 estate tax bill after her partner died, pursuant to DOMA's requirement that only opposite-sex marriages be recognized as valid under federal law. (7) Had Edie's spouse been a man and their marriage recognized as valid under federal law, Edie would not have been taxed for the marital estate. After she unsuccessfully sought relief from the IRS, Edie brought a federal lawsuit seeking a refund and challenging the constitutionality of DOMA on equal protection grounds under the Fifth Amendment. (8)

In contrast with the Windsor action, another lawsuit challenging Section 3 of DOMA had also raised Tenth Amendment and Spending Clause claims. (9) As described in this Article, asserting Tenth Amendment challenges to DOMA was an approach that appealed to some who viewed federalism challenges to the Act as strategically savvy in a minimalist appealing-to-conservatives way. Although Edie Windsor did not similarly assert a Tenth Amendment challenge to DOMA on federalism grounds, the Supreme Court's final decision in her favor did contain a passage addressing the general legislative authority of states to set marriage laws. (10) This inclusion of a state powers passage in the majority opinion led some to view the decision as a federalist decision that renders the authority to define and regulate marriage exclusively a matter of state prerogative. (11)

This Article reveals the flaws of such readings of Windsor that erroneously conflate Windsor's discussion of state legislative authority with the endorsement of a broader federalism doctrine that would allow states to deny marriage rights to entire classifications of people, unchecked by even federal judicial review. Such broad, unchecked federalism is anathema to the protection of constitutional rights, as it would leave some fundamental individual rights up to majority will. Moreover, such broad, unchecked federalism is not actually endorsed by the majority opinion in Windsor, its state powers passage notwithstanding, as revealed by a careful reading of the opinion.

Metaphorically, this Article explains how the duck test, if applied to Windsor, would not render it a federalist decision, despite being so labeled by dissenters in that case and by others. Rather, despite appearing to quack like a federalist duck, ultimately, Windsor is, in effect, something else entirely: a swan song setting the stage for the eventual demise of federalist-based marriage discrimination.

In support of this thesis, Part I of this Article describes the history of same-sex marriage litigation, with a particular focus on the influence of last century's "minimalist" movement in steering LGBT litigants away from asserting broad constitutional claims in court for a number of years. (12) The Article details how the minimalist movement alternatively advocated a federalism-focused approach toward attacking DOM A, as a means of narrowly garnering the five Supreme Court votes needed to win the case. Part II describes how some Court-watchers consequently viewed Windsor as a "federalist" decision when it was released. However, this section further explains why Windsor is not, in fact, a federalist decision but is, rather, an individual rights decision. Part III offers a somewhat cynical explanation of the state powers passage of the Windsor opinion, suggesting that Justice Anthony Kennedy's inclusion of federalism overtones in the majority opinion is strategic artifice that deliberately masks the decision's broader purpose of using federalism against itself--i.e., engaging federalism-sounding principles only to ultimately dismantle federalism-based marriage discrimination. Windsor is compared to other instances in history in which powerful rhetoric has been used to mask the fact that the speaker's end goal is the opposite of what a surface reading of the speaker's words might indicate. However, Parts IV and V then counteroffer a less cynical reading of Windsor, concluding that rather than indicating some type of artifice or intentional misdirection, Windsor's analysis, even with its tangential state powers discussion and narrowing language, is doctrinally solid and in line with the Court's past individual rights decisions.

Windsor is but the latest layer of a growing foundation of equal liberty jurisprudence, established with deliberate doctrinal integrity to ensure greater protections for individual rights over time as both society and the courts become more enlightened. (13) To some extent, foundation-building jurisprudence may reflect a type of minimalism urged by some Court-watchers over the years in its paced and deliberate tone. However, to a greater extent, Windsor, like its predecessors, is a broad affirmation of evolving constitutional principles that serves as a doctrinally powerful precedent for future, potentially more sweeping, affirmations of equal LGBT rights and liberty interests under the Constitution.

1. THE MINIMALIST MOVEMENT'S INFLUENCE ON FEDERALISM-FOCUSED STRATEGY IN DOMA CHALLENGES

   The arguments made in DOMA litigation and other LGBT...