Windsor, same-sex marriage, federalism, equal protection, Bickel, passive virtues, Defense of Marriage Act, DOMA, constitutional interpretation
This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny and the justiciability doctrines—may be used as a way station toward a particular later resolution.
Neil S. Siegel, Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion, Journal of Legal Analysis (forthcoming)