Courtney G. Joslin, University of California, Davis, School of Law, has published Windsor, Federalism, and Family Equality at 113 of Columbia Law Review Sidebar 156 2013). Here is the abstract.
In a 5-4 decision authored by Justice Kennedy, the Court held in Windsor v. United States that section 3 of the Federal Defense of Marriage Act (DOMA) is unconstitutional. Advocates had attacked section 3 on two primary grounds. The principal argument leveled at section 3 was that it violated principles of equal protection by denying one class of married spouses — lesbian and gay spouses — all federal marital benefits.
Section 3 was also attacked on a number of federalism-based grounds. Some advocates pushed a particularly strong federalism variant, arguing that DOMA was unconstitutional because Congress lacked the authority to define or determine family status. I call this the categorical family status federalism argument. Others endorsed a more moderated claim. Under this theory, the fact that a law — here section 3 of DOMA — deviated from the historic allocation of power as between the federal government and the states was simply a basis for applying a more careful level of equal protection scrutiny. Under this theory, the federalism-based concerns were not an independent basis for striking down the law.
This Essay argues that civil rights advocates dodged a bullet when the Windsor Court declined to embrace the categorical family status federalism theory. While its acceptance would have brought along the short-term gain of providing a basis for invalidating DOMA, it also would have curtailed the ability of federal officials to protect same-sex couples and other families.
Download the essay from SSRN at the link.
