Taking Justice Kennedy Seriously: Why Windsor Was Decided "quite apart from principles of federalism

Abstract

In this article I refute the argument, made by many scholars in the immediate aftermath of the announcement of United States v. Windsor on June 26, 2013 (striking down Section 3 of the Defense of Marriage Act (DOMA)), that Justice Kennedy’s opinion for the Court in that case is primarily a federalism decision. Drawing on arguments that I made in The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (2009), I argue that in Windsor the commitment made by the Justice is instead very clearly to equal liberty, just as it was in Romer v. Evans (1996) and Lawrence v. Texas (2003). That commitment wholeheartedly embraces the spirit of egalitarianism and social justice that lies at the heart of the legacy of the Great Society speech that President Johnson gave at the University of Michigan fifty years ago, in May 1964. The “abundance and liberty for all” imperative of which the President spoke was at the time focused upon, and remains today best-remembered for addressing racial and wealth inequities. However, the progressive themes of the speech are grounded in broader moral principles that today apply as much to the battles fought on behalf of the LGBT community as to those designed to combat the ills of racism and poverty. The articulation of those themes in Windsor gets lost if analysis of Justice Kennedy’s majority opinion in that case focuses not on equal liberty but on federalism.