It was difficult to resist the urge to react instantaneously to the marriage decisions today, but I’m glad I took the time to read the majority opinion in Windsor and a couple of the dissents (Roberts’ and Scalia’s). Therefore, I can wholeheartedly agree that it was not the best possible day. Perhaps my lack of enthusiasm is due to my sense of knowing how this sausage gets made in addition to secretly hoping for more meat.
I agree that it was better that Kennedy stressed equality over federalism, but the problem with his treatment of equality is that he left this brand of discrimination at the low level rational basis review stage where he first put it in Romer–essentially making Lawrence irrelevant–and then perversely claims that he’s deciding the case based on Fifth Amendment liberty. I think Scalia got it right to challenge this mushy penumbral approach, although his complaints about implied or alleged animous at the center of Kennedy’s silly standard of review seem particularly in bad faith.
Kennedy still doesn’t get it that these cases are about sex discrimination plain and simple and need to be treated that way. All the talk about dignity makes it seem that in the absence of government recognition gay people should feel subordinate. And the tentative approach to establish a constitutional right–to equality? to liberty? to state sovereignty over domestic relations?–belies the urgency to decide the merits.
I know that we as a people will eventually get there and that half a loaf is better than nothing, but it still feels like a missed opportunity for real, substantive change. Windsor only gave the smallest possible victory without any recognition of the choice of law morass it creates for future decisions. I did feel that the Court was conscious of that and positively relying on it. And in meantime, there’s still the affirmative action decision backsliding and voting rights decision retrenchment to deal with.
You know, some of us would like to get on with business of living our lives without re-litigating the same battles in slightly different form over and over again.
Robert Westley is LOCHEF Professor in Legal Ethics and Professional Responsibility at Tulane University School of Law. He joined the Tulane faculty in 1995 after completing his PhD in philosophy. While at Yale, Professor Westley was a recipient of a Mellon Foundation Fellowship in the Humanities. His research and teaching interests are in the fields of critical race theory, constitutional law, philosophy of law, and the legal profession.
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