Why is the Defense of Marriage Act unconstitutional? Here are two propositions that United States v. Windsor might be thought to stand for:
(1) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional intrusion on federalism (a structural claim); or
(2) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional infringement on a substantive right, e.g., the right to marry (a liberty claim).
These are among the many plausible interpretations of Windsor, but some explanations are more plausible than others. After consuming several pages discussing the interests of the states in controlling family law, Justice Kennedy expressly states that the Court is not relying strictly on federalism. Surely a statement in a decision suggesting what it means should have some bearing on what it means. The Chief Justice, in dissent, thinks federalism is nevertheless critical to the result and would help to distinguish the case from one that involved a claimed constitutional right to state recognition of same-sex marriages. He might be right about that. But the Chief Justice’s explanation may also be more a hope about the limited consequences of an alternative Windsor than a reading of the actual Windsor (see Justice Scalia’s dissent).
As for the second proposition, the Court certainly mentions liberty several times. And the context is one in which the plaintiffs claim that “liberty” protects a right to have their marriages fully recognized by government. The Court sets for itself the task of deciding “whether the resulting injury and indignity is a deprivation of the liberty protected by the Fifth Amendment.” Slip op. at 19. It concludes that Congress “cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.” Op. at 25. But my sense is that reliance on the word “liberty” here is more a doctrinal necessity — this is a decision rooted in [...]