The Ghost of Federalism Present

Back in July of 2013, I examined briefly the case of United States v. Windsor, noting with some surprise that Federalist principles were invoked in the opinion of the Supreme Court (an opinion written by Justice Kennedy), principles I had thought long dead in the United States.  Despite the fact that I agreed with the general opinion of the majority of the court that same-sex couples should have access to the same public goods associated with marriage which are currently available to opposite-sex couples, my larger concern from a legal standpoint was for the quality of the legal reasoning used to arrive at the holding, because that is what can influence the outcomes of future cases.  I was very much hoping that Federalism might influence the outcomes of cases more often.

And here we are in June of 2015, once again faced with a Supreme Court decision written by Justice Kennedy on the topic of marriage.  The names have changed to Obergefell v. Hodges, but the legal reasoning has remained the same, except for one curious omission.  Once again, the Equal Protection Clause featured prominently, along with the Due Process Clause.  I may have written the decision very differently, but I tend to think that those are the best two Constitutional clauses to use to justify the decision, so that’s fair enough.  What concerns me is that this time, Justice Kennedy seems to have let that whole Federalism thing slip his mind.

Granted, it’s been two years since he invoked it in the case that overturned DOMA, so maybe he forgot it after a long night of drinking with Justices Kagan and Scalia sometime last year.  I think it is more likely that he recognized that in this case, he was disregarding Federalism in favor of protecting a liberty interest, specifically individual autonomy.  It’s certainly true that there are cases in which individual liberty trumps existing state law, and the Supreme Court certainly held that in this case.  Disappointingly, only Chief Justice Roberts and Justice Alito invoked Federalism in their dissent, dissents which will probably be read primarily so that bloggers can poke fun at how out of touch they are.

Federalism does seem to be something only those of us who are old-fashioned believe in these days, so perhaps that makes some sense.  Maybe I’m crazy for believing that legal principles matter, and we will likely find out when the issues of incestuous marriages and polygamous marriages hit the Supreme Court’s docket and they can’t be easily dismissed for lack of standing.  When that happens, we will find out if the folks who have been spraying the marital slope down with lube are still willing to claim that it is not slippery.  Personally, I’ll still be drinking a nice mojito in the shade of the palm trees at the bottom of the slope.

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