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Windsor and Roe



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The two decisions are not comparable in all respects of course: Windsor did not sweep away the laws of all fifty states, the way Roe (in combination with Doe) did; nor did it work as grave an injustice. After reading the Windsor opinions and the commentary about them, though, I am reminded of what John Hart Ely said of Roe: that it “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” (Ely himself supported legal abortion.)

Emily Bazelon, trying to defend Kennedy’s opinion in Slate, puts the problem gently:”Kennedy didn’t make entirely clear the basis for his holding.” (That’s okay by her lights because the Defense of Marriage Act was so terrible.) Kennedy writes a lot about the states’ traditional powers to set marriage laws, but he’s not stating a premise in an argument, he’s just setting a mood of hostility to the law. Perhaps the “federalist argument” against DOMA — the claim, that is, that the federal government intrudes on state prerogatives when it defines the terms it uses in statutes governing its own programs — was just too ridiculous even for Kennedy. He writes about the Equal Protection Clause but doesn’t say that DOMA violates it, perhaps because he doesn’t want to reconcile that theory with Court precedents or because he wants to avoid coming out and saying that states no longer have the power to continue to define marriage as the union of a man and a woman. He invokes the Due Process Clause, but doesn’t follow that train of thought anywhere in particular either, perhaps because, as Justice Alito observes in dissent, it’s hard to fit same-sex marriage into the “deeply rooted liberties” the Court has held that clause to protect.

The bottom line is that five justices of the Court just wanted to see this law go down, and were not very particular about how it would be accomplished. In the years after Roe, finding more plausible constitutional justifications for the decision became something of an academic pastime among supporters of the abortion license. I am sure that most of the country’s con-law professors agree with the result in Windsor, but doubt a single one of them would have written the opinion the way Kennedy did. When Scalia closed his dissent by remarking that Kennedy had deprived supporters of same-sex marriage of an “honest victory,” this is what he was talking about.



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