At The Volokh Conspiracy, summarizes Justice Kennedy's majority opinion in
United States v. Windsor:
In his opinion for the Court, Justice Kennedy employed much of this “federalism” logic, but with a significant twist that converted it from an enumerated powers into a “liberty” argument. In brief, he used the interference with the traditional province of states to regulate marriage to justify heightened scrutiny under the Fifth Amendment’s Due Process Clause. Here is the logic of his opinion:
- The definition and regulation of the right to marry is traditionally the province of states (and is not among the enumerated powers of Congress. (“The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.” [17])
- When it enacted DOMA Congress was demonstrably intending to and did interfere with this traditional function of states to define and regulate the right to marry by raising the cost to same-sex couples of being married under state law. (“DOMA seeks to injure the very class New York seeks to protect” [20])
- Therefore, the Court will use heightened scrutiny to evaluate the rationality of DOMA’s imposed definition of marriage (“ In determining whether a law is motived by an improper animus or purpose, ‘[d]iscriminations of an unusual character’ especially require careful consideration.”).
- This unusual deviation from the past practice of respecting state law definitions of marriage was improperly motivated by animus. (“The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” [21)
In short, under Justice Kennedy’s reasoning, it is the fact that states have recognized same-sex marriage that gives rise to heightened judicial scrutiny (“Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” (emphasis added) [18]). In essence, state law is being used to identify a protected liberty or right within its borders against a federal statute. Although this converted our enumerated powers argument into a protection of individual rights, at the same time, it both relied on and preserved the states’ prerogatives to define and protect liberty.
In a related case, the governor and attorney general of California refused to defend a state initiative that defined marriage as the union of a man and woman. Private supporters of the measure did so, and the Supreme Court ruled that they lacked standing. In his majority opinion in Hollingsworth v. Perry, Chief Justice Roberts wrote:
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
In his dissent, Justice Kennedy wrote:
The Court concludes that proponents lack sufficient ties to the state government. It notes that they “are not elected,” “answer to no one,” and lack “‘a fiduciary obligation’” to the State. Ante, at 15 (quoting 1 Restatement (Third) of Agency §1.01, Comments e, f (2005)). But what the Court deems deficiencies in the proponents’ connection to the State government, the State Supreme Court saw as essen- tial qualifications to defend the initiative system. The very object of the initiative system is to establish a law- making process that does not depend upon state officials. In California, the popular initiative is necessary to imple- ment “the theory that all power of government ultimately resides in the people.” 52 Cal. 4th, at 1140, 265 P. 3d, at 1016 (internal quotation marks omitted). The right to adopt initiatives has been described by the California courts as “one of the most precious rights of [the State’s] democratic process.” Ibid. (internal quotation marks omitted). That historic role for the initiative system “grew out of dissatisfaction with the then governing public offi- cials and a widespread belief that the people had lost control of the political process.” Ibid. The initiative’s “primary purpose,” then, “was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt.” Ibid.
...
The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. See id., at 1160, 265 P. 3d, at 1030; cf. Alaskans for a Common Language, supra, at 914 (noting that proponents must be allowed to defend an enacted initiative in order to avoid the perception, correct or not, “that the interests of [the proponents] were not being defended vigorously by the executive branch”). Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental struc- ture. See 52 Cal. 4th, at 1126–1128, 265 P. 3d, at 1006– 1007. And in light of the frequency with which initiatives’ opponents resort to litigation, the impact of that veto could be substantial. K. Miller, Direct Democracy and the Courts 106 (2009) (185 of the 455 initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court). As a consequence, California finds it necessary to vest the re- sponsibility and right to defend a voter-approved initiative in the initiative’s proponents when the State Executive declines to do so.
