Justice Kennedy’s pathbreaking opinion mixes structural constitutional principles – federalism – with individual rights principles – equal protection/ due process – into a unique blend that leads to Section 3 of DOMA being unconstitutional. Why this mixed blend? Why not decide the case on either the structural basis or the individual rights basis alone?
First, if the case were decided on straight due process/equal protection grounds, it would be very difficult for the decision not to rest on a logic that would compel the conclusion that states are constitutionally obligated to permit same-sex marriage. The very reasons that would make it unconstitutional for federal law to prefer traditional marriage – reasons of morality, or tradition, or related ones – would be the very same reasons states would rely on to defend their laws that prefer traditional marriage. Thus, those state laws would be likely to fall from any straightforward ruling solely on individual rights grounds that DOMA Section 3 violates equal protection/due process. Whether Justice Kennedy wants to get there some other day or not, he doesn’t want to pre-commit now to that ultimate decision. Thus, all of the emphasis on constitutional principles of federalism are a way of tempering that more bald and direct equal protection/due process holding. The federalism emphasis potentially cabins the decision only to DOMA itself, without a logic that would lead directly to an affirmative constitutional obligation for all states to permit SSM (Dissenting, Justice Scalia argues the equal protection/due process rationale still remains clear enough as to logically compel the conclusion that SSM is constitutionally required). That’s why Justice Kennedy does not decide the case on a more direct individual rights basis. That is also partly why his opinion does not even address the much-disputed issue over whether the proper standard of review here is heightened scrutiny or rational basis review.
Second, why then not decide the case on direct structural grounds that DOMA violates constitutional principles of federalism, to which Justice Kennedy is strongly drawn? Because he recognizes that to hold DOMA unconstitutional solely as an intrusion on traditional state areas of control would be a greatly destabilizing innovation in constitutional doctrine. A vast amount of federal law regulates in areas that traditionally and historically were under state control. So Justice Kennedy is not prepared to go down the pure structural route of federalism alone.
By holding DOMA unconstitutional because of some mix of federalism/individual rights constitutional principles – without very directly concluding that it violates either federalism alone or equal protection/due process alone – we have a classic Justice Kennedy decision. He has cobbled together a doctrinal resolution that does not commit to the more dramatic proposition that SSM is constitutionally required, or to the dramatic federalism principle that Congress has no power to override states in areas of traditional state control, while also reaching the conclusion that Section 3 of DOMA is unconstitutional.
Justin blogged about the decision on this site earlier and I’ve posted this here, even though it’s not necessarily the most appropriate site for this. I would normally post this at the Balkinization Blog, but for some reason, I can’t get the mechanics to work for blogging there today. Hence this post.