Windsor: Lochnerizing on marriage?

Author:Girgis, Sherif
Position:Introduction into IV. Legitimacy, p. 971-999


This Article defends three insights from Justice Alito's Windsor dissent. First, federalism alone could not justify judicially gutting DOMA. As I show, the best contrary argument just equivocates.

Second, the usual equal protection analysis is inapt for such a case. I will show that DOMA was unlike the policies struck down in canonical sex-discrimination cases, interracial marriage bans, and other policies that involve suspect classifications. Its basic criterion was a couple's sexual composition. And this feature--unlike an individual's sex or a couple's racial composition--is linked to a social goal, where neither link nor goal is just invented or invidious.

Third, and relatedly, to strike down DOMA on equal protection grounds, the Court had to assume the truth of a "consent-based" view of the nature of marriage and the social value of recognizing it, or the falsity of a "conjugal" view of the same value and policy judgments. But as I show, nothing in our constitutional tradition--read as broadly as possible, even by non-originalists--deems the first true or the second false; both are reasonable; and it is historically impossible to ascribe the conjugal view to mere animus.

I conclude that the equal-protection ruling against DOMA Lochnerizes--as would equal-protection rulings against traditional state marriage laws--even if we embrace several scholars' proposals for expanding equal protection jurisprudence. So to defend Windsor or decisions against traditional state marriage laws, one must justify Lochnerizing or distinguish it.

CONTENTS INTRODUCTION I. FEDERALISM II. CLASSIFICATIONS A. Sexual Orientation B. Sex III. LOCHNERIZING IV. LEGITIMACY A. Value Judgment Defense 1. Intellectual and Legal Traditions 2. Philosophical Account a. Comprehensive Unifying Acts: Mind and Body b. Comprehensive Unifying Goods: Procreation and Domestic Life c. Comprehensive Commitment: Norms of Permanence and Exclusivity 3. DOMA's Particular Purposes B. General Welfare Defense 1. Law, Culture, Practice 2. Marriage, Stability, and the Next Generation 3. Children and the Common Good V. AVOIDING LOCHNER? A. Infertility Objection 1. Still Marital 2. Social Effects B. Windsor's Hybrid Argument C. Balkin's Stratification Argument D. Koppelman's Depraved Heart Argument CONCLUSION INTRODUCTION (1)

There was something tediously familiar--and unsatisfying--about the divide in United States v. Windsor. (2) It featured Justice Anthony Kennedy's dizzying majority opinion against Justice Antonin Scalia's ardent dissent. For Kennedy, section 3 of the federal Defense of Marriage Act (3) (DOMA) violated equal protection, or due process, or federalism--or a combination of these, or a hybrid. For Scalia, "downright boring" policy goals could rebut charges of nefarious intent. (4)

For Kennedy, Windsor involved a collision of worldviews, (5) and the fault lay with DOMA for having imposed on same-sex spouses "a separate status, and so a stigma." (6) But any marriage law creates a separate status. That is a crucial point that any constitutional case against a legal definition of marriage must accommodate, as we will see. Yet Kennedy's reasoning misses it entirely; indeed, even some Windsor supporters found his logic wanting. (7)

For Scalia, DOM A was justified as a mundane choice-of-law measure. But surely more was at stake than logistics--as Scalia implicitly grants. (8)

Less discussed than either opinion was Justice Alito's dissent. Yet it has a satisfying account of the stakes and compelling legal reasoning, and the second thanks to the first. As he tells it, the case raised basic policy and value questions. To hold that DOMA violated equality required the Court to take a stance on reasonably disputed views of what makes a marriage and why marriage law matters. (9) But on these policy and value judgments, the Constitution is mute. So in Alito's view, if not his words, the Windsor Court did what critics have long faulted the Court for doing in Lochner v. New York: (10) it substituted its own policy choices for electorally favored alternatives without a whit of constitutional warrant.

Alito's dissent, compared to Kennedy's and Scalia's opinions, was as compact as it was overlooked. I think it would repay closer study. In particular, I wish to consider its implicit charge of Lochnerizing. I will show that the charge sticks--and that it would apply to rulings against any traditional-marriage law (11) on equal protection grounds.

Along the way, I will also defend Alito's supporting details, where they set the stage for my central point or support it: DOMA left state powers untouched, so it violated no principle of federalism; the best contrary argument trips on an equivocation. Congress did promote what it judged the best view of marriage and its social value, but it thereby violated no principle of equal protection. The usual equal protection apparatus was, as Alito wrote, "ill suited" to the case anyhow, for (as I will add) DOMA made benefits hinge in the first place on a couple's sexual composition. And that criterion--unlike an individual's sex, or a couple's racial composition, or any familiar suspect classification--has an inherent link to a sound social goal. Neither link nor goal is socially invented or invidious. Moreover, to find sexual composition utterly unrelated to marriage or its social purposes would require the Court to choose, as Alito wrote, between two theories of marriage: a consent-based view that would promote any romantic pair-bond or a conjugal view that sees marriage as "a comprehensive ... union ... intrinsically ordered to producing new life" and hence "intrinsically opposite-sex." (12) Alito noted that some of the second view's champions think enshrining the first would undermine marital norms and their socially stabilizing effects and that some supporters of the former agree and celebrate that prospect. I will offer evidence for both points. I will also show that both views are reasonable and legitimate. The Constitution requires neither; it forbids neither. That is not just an originalist point; as I will show, it holds on quite capacious readings of the Constitution and case law.

I defend these points here, having addressed them variously elsewhere. (13) And yet, in the most crucial respect, my ambitions are limited. I will not provide a complete defense of traditional marriage laws (including DOMA), even against the equal protection challenge alone. Again, my main concern will be to draw out and defend Alito's condensed case for the idea that Windsor required a judicial choice between reasonably contested value and policy views, without a constitutional basis. If my argument is expansive, it is in showing that the same would hold of traditional state marriage laws--and not just by the case law, but on several scholars' proposals for developing it. (14)

So for all I can show here, a sound equal protection approach might exist that would avoid Lochnerizing. Or maybe Lochnerizing, pace generations of critics, is just fine--or was wrong for narrower reasons that would not impugn Windsor. Then again, a certain kind of Lochnerizing might turn out to be inevitable if courts are to carry their current burden of equal protection enforcement. Then we must either reconcile ourselves to some Lochnerizing or shift more of the task of equal protection enforcement to Congress, on an expanded reading of its Section 5 powers. (15) Here I mean only to shift the burden of proof onto Windsor's defenders by showing prima facie that it Lochnerizes.

In Part I, I argue against the most prominent federalism challenge to DOMA, granting along the way that DOMA's primary purpose was to promote a certain view of marriage. In Part II, I examine the arguments that DOMA classifies by sexual orientation and by sex, showing the awkwardness of attempts to apply ordinary equal-protection analysis to traditional marriage laws. Both Parts set up my primary thesis, elaborated in Part III and defended in Part IV, that an equal protection ruling against DOMA or any traditional-marriage law requires the Court to take positions on reasonably disputed, extra-constitutional value and policy judgments. To do so is to repeat the ways of Lochner, long decried for having substituted judicial for legislative policy preferences. In Part V, I argue against four ways drawn from cases and commentary that one might try to clear Windsor of the Lochner charge.


    Federalism plays a supporting role in the Court's opinion, which begins with several pages on our system's reserving to states the power to define domestic relations. (16) While the majority ultimately declines to rule on the federalism challenge to DOMA, (17) it does rely on a hybrid federalism-equal protection argument, (18) which in turn relies (I will argue) on a direct federalism challenge posed by several amici in the case (the "Federalism Scholars"). (19)

    I consider the latter here in order to establish a premise later deployed against the Court's actual reasoning, and because addressing it will bring into view the most natural reading of DOMA's purpose, which will guide the rest of my argument.

    The Federalism Scholars argued that DOMA's definition of "marriage" for federal law was not pursuant to an enumerated power of Congress. (20) Nor was it "necessary and proper" for federal action. (21) The reason is that DOMA's purpose had nothing to do with any federal power. It had to do rather with a state prerogative: preserving a certain vision of marriage (in the House Report's words, promoting the "institution of traditional heterosexual marriage" (22)). So it violated principles of federalism, whatever its status under equal protection.

    The Federalism Scholars grant that in general, "defining who may receive a benefit is incidental to the power of conferring a benefit under the Spending power." (23) After all, if no particular group is constitutionally owed a benefit...

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