This paper offers a new take on Windsor v. the United States, a case on everyone's mind as this issue goes to print given the Supreme Court's recent grant of certiorari in the same-sex marriage cases. Be warned, though. Academics usually come to bury opinions, not to praise them, so I'm stepping out of role by saying something nice about a Supreme Court opinion. But I think there's a bit of mad genius in Windsor and that academics have been too quick to dismiss its insights. While Windsor flouts just about everything we teach our students about constitutional law, it is right to do so. Its author, Justice Kennedy, blurs the lines between federalism, liberty, and equality, and he blurs the lines between structure and rights. The genius of the opinion is that it recognizes that rights and structure are like two interlocking gears, moving the grand constitutional project of integration forward. While the doctrine isn't built to recognizing that reality, that's the doctrine's problem, not Windsor's.
Date of Authorship for this Version
Gerken, Heather K., "The Interlocking Gears of Rights and Structure: Why the Critics Are Wrong About U.S. v. Windsor" (2015). Faculty Scholarship Series. 5162.