A Visual Guide to United States v. Windsor: Doctrinal Origins of Justice Kennedy’s Majority Opinion

Starger, Colin P., A Visual Guide to United States v. Windsor: Doctrinal Origins of Justice Kennedy’s Majority Opinion (July 5, 2013). Available at SSRN: http://ssrn.com/abstract=2290223

After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”

This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how both equal protection and substantive due process doctrine have contributed to a constitutional jurisprudence that affirms the rights of same-sex couples.

Moreover, the map also takes the sting from Justice Scalia’s complaints in Windsor that the majority failed to ask under substantive due process whether same-sex marriage was a right “deeply rooted in this Nation’s history and tradition” and also failed to clearly articulate a “tier of scrutiny” when considering whether DOMA violated equal protection. As analysis of the opinions represented in the map demonstrates, the Court has long applied tests other than Scalia’s when conducting both substantive due process and equal protection review. Indeed, Kennedy’s doctrinal approach is consistent with precedent and the particular doctrinal traditions advanced by Justices Douglas, Brennan, and Blackmun.

This Visual Guide is a single-page PDF “poster” designed to serve as quick reference and teaching tool.