Resource: "Amorphous Federalism" and the Supreme Court's Marriage Cases

By: David B. Cruz

January 1, 2014

Loy. L.A. L. Rev.

This Article addresses the U.S. Supreme Court's decisions in
Hollingsworth v. Perry and United States v. Windsor, the two cases in
the October 2012 Term that took up issues of marriage rights of same-
sex couples. After Part I of the Article provides a brief Introduction,
Part II examines the Supreme Court's opinion in Perry. It summarizes
the litigation; teases out divergent views of the relevance offederalism
for the Court's standing ruling in the case; identifies the problematic
constitutional underpinnings of the Perry dissenters' views of federal
court standing, which rely on an unjustified constitutional privileging of
initiative lawmaking; and explains why Perry is likely to have but
limited impact on the Supreme Court's Article III standing doctrine.
Part III then summarizes the Windsor litigation; defends what should
have been the self-evident conclusion-though denied by Justice Scalia
in his dissent-that the majority opinion is based on equal protection
(even if it perhaps also rests on substantive due process protection of
"liberty ") and in so doing unpacks its treatment of federalism-
something Scalia derided as "amorphous "-to show how the majority's
treatment of states' predominant historical role in marriage regulation
fits within an evidentiary framework the Court used to help establish
the impropriety of the purpose of the Defense of Marriage Act; and
explores some potential ramifications of the Windsor decision for
challenges to state refusals to recognize same-sex couples' marriages
from other states and to state refusals to allow same-sex couples to
marry within their territory.