Home » Legal Commentary » Windsor, Oklahoma, and States’ Rights

Windsor, Oklahoma, and States’ Rights

One of the major questions in understanding the Supreme Court’s decision in Windsor (which invalidated section three of the Defense of Marriage Act) is what rationale Justice Kennedy was using. Some language in the opinion suggests that Windsor was decided purely as a matter of states rights. Marriage has traditionally been a state issue to define, and within limited exceptions, the federal government has recognized marriages performed by states (one of those limited exceptions being for immigration purposes, where the federal government still interrogates a valid state marriage, but that is not applicable here). In Windsor, Kennedy explained that the Court should be suspicious of a federal law that changed this long history of federal deference to state law on matters of marriage.

However, there is also a strong strand in the opinion of recognizing the dignity of same-sex couples. Read this way, the states rights language is less central. Windsor is more about the ongoing changes in federal equal protection jurisprudence as applied to lesbians and gays than it is about states rights.

I already believed the dignity reading was the much stronger reading of Windsor, but the recent trial court opinion in Oklahoma points out another wrinkle of the Windsor opinion that further strengthens that. In Bishop v. U.S., the federal trial court in Oklahoma held that Oklahoma’s exclusion of same-sex couples from marriage violates the U.S. constitution. Bishop explains that Windsor technically does not rule on whether states can ban same-sex couples from marrying. However, Bishop considers Windsor to be highly persuasive on whether such state exclusions violate federal constitutional rights. An extensive block quote is helpful:

Again, however, the… argument has its limitations. In discussing this traditional state authority over marriage, the Supreme Court repeatedly used the disclaimer “subject to constitutional guarantees.” (Citation to Loving v. Virginia). A citation to Loving is a disclaimer of enormous proportion. Arguably, the “state rights” portion of the Windsor  decision stands for the unremarkable proposition that a state has broad authority to regulate marriage, so long as it does not violate its citizens’ federal constitutional rights. (emphasis added)

Loving v. Virginia is the 1967 Supreme Court decision striking down state anti-miscegenation laws (laws that prevent interracial marriage). Loving thus explicitly overruled state authority to regulate marriage when state laws violate federal equal protection principles. The state can define marriage, but it cannot define marriage in a way that discriminates based on race. Similarly, Windsor strongly suggests–although it does not explicitly hold–that the state can define marriage, but it cannot define marriage in a way that discriminates based on sexuality.

The Windsor opinion only cites Loving once: “State laws defining and regulating marriage, of course, must respect the the constitutional rights of persons, see, e.g., Loving v. Virginia…” (Windsor at 2691). When I first read Windsor, I missed the significance of this citation. But the Oklahoma case rightly points it out. The Windsor opinion could have just as easily cited Supreme Court precedent upholding a state marriage law for the proposition that state marriage laws are still subject to federal constitutional protections. Such a citation would have placed stronger emphasis on states rights. In a case where the Supreme Court upholds a state marriage law, the note that state marriage laws are still subject to the U.S. constitution serves more as a perfunctory reminder. But by citing LovingWindsor underlines and emphasizes the statement that state laws “must respect the constitutional rights of persons.” Thus, this citation to Loving reinforces reading Windsor  as being more about dignity and equal protection rather than being about state rights.


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