Windsor and the Problem with Rights of Recognition

Commentators on Windsor v. United States, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act, have puzzled about whether the Court’s opinion relies on a federalism rationale or instead some broader rationale about rights for same-sex couples. In The Trouble with Dignity and Rights of Recognition, recently published in the Virginia Law Review Online, I argue that one of the problematic aspects of the decision is that its use of dignity creates an unprecedented right of recognition. Because the decision ultimately turns neither on federalism nor on individual rights, it exists outside of our constitutional tradition.

Justice Kennedy’s opinion for the Court repeatedly refers to dignity, a dignity that is at the core of the Court’s constitutional reasoning. I have for some time been thinking and writing about the use of dignity in constitutional law (see here). Importantly, there are different concepts of dignity that lead to different ways of thinking about constitutional rights. In the American constitutional tradition, dignity usually (though not always) stands for individual rights and negative liberties, but in Windsor the Court elevates a relatively new form of dignity, what I call the dignity of recognition.

The Court invalidates Section 3 of DOMA because it deprives same-sex couples of the liberty protected in the Fifth Amendment. The liberty, however, is not the same sort found in other civil rights cases—a liberty to undertake some action free from government interference. Rather, the Court strikes down part of DOMA because its “essence” is to interfere “with the equal dignity of same-sex marriage, a dignity conferred by the States in the exercise of their sovereign power.” The liberty in Windsor is about recognition of a specific state policy. According to the majority, DOMA offends the Constitution because it refuses to “acknowledge a status” conferred by States that allow same-sex marriage.

In my essay I explain how a right to recognition standing alone is problematic. In previous cases, the Court sometimes referred to the harm of being overlooked or demeaned, but these harms were largely incidental to the finding of individual rights. For instance, anti-subordination concerns appear in Brown v. Board of Education, but the constitutional harm was racial discrimination—discrimination may result in a feeling of inferiority, but this feeling was not the constitutional harm.

The meaning of Windsor matters because of the ongoing litigation over related issues. Expanding the rationale of the Court’s decision along the lines of recognition can undermine the way we think about rights. A claim for recognition exists only in relationship to what the government requires or provides. Given the expansive reach of the federal government, recognition has important practical consequences for same-sex couples. But having federal recognition for same-sex marriage is not a freedom or right in any meaningful sense. Consider that if every state eliminated same-sex marriage, Windsor would not protect any marriage rights.

In my next post I will discuss why Windsor ultimately does not turn on federalism grounds, contrary to the arguments raised by Professor Ernest Young in his thoughtful response to my essay.