Yesterday I discussed my recent essay The Trouble with Dignity and Rights of Recognition. I want to explain further why I believe the Court’s decision ultimately does not rest on a federalism rationale, in part addressing Professor Ernest Young’s thoughtful response to my essay.
The Court’s right of recognition is linked to the substantive right to same-sex marriage created under New York law. Professor Young explains that the Court finds state law important for conferring “dignity” on same-sex marriages and this, in part, demonstrates that the decision is about respect for the federal balance. Yet this does not explain why Congress could not adopt its own definition of marriage for the purposes of federal law (Nick Rosenkranz discussed this issue before Windsor was decided here and here).
To invalidate DOMA, there must be something else going on—the Court objects to the fact that DOMA expresses “disapproval” of same-sex marriage, interferes with the “equal dignity of same-sex marriages,” and treats those marriages as “second-class marriages for purposes of federal law.”
My point is that this something else is not (at least explicitly) about any underlying right or freedom. Windsor does not recognize a right of same-sex marriage, nor does Windsor say that distinctions based on sexual orientation receive heightened scrutiny. These would at least be claims familiar from the Court’s precedents. I think that the Court’s decision recognizing same-sex marriages is incoherent without some understanding of such underlying federal rights.
Moreover, Windsor is not simply an equal protection decision based on state law, because the Court holds that the federal government must recognize same-sex marriage, but cannot recognize a claim only for traditional marriage. Professor Young’s response to this is that these are not equal claims for recognition. He says, “I can always frame a desire to meddle [...]