When British lawyers look across the Pond, the thing most likely to impress us is not the soaring language of the Bill of Rights or the enumerated powers of the Constitution. Instead, what we notice first is ‘the laboratory of the states’: federalism. Legislatures and courts in 50 states get to try different laws on for size and – most of the time – discover which ones are duds rather promptly. Of course, this process can be taken too far (which is why the 14th Amendment exists), but on the whole, it’s a real boon.
Thus it was good to see, in Windsor, the SCOTUS hand down such a federal judgment. Congress got its nose smacked for meddling in an area of the law properly in the States’ purview and, even better, Justice Kennedy’s ingenious reasoning meant it was the very fact that States had recognized same-sex marriage that enlivened heightened judicial scrutiny under the 5th Amendment.
Traditionally, the “federalism question” was a simple two-stage process: (1) Is the law within Congress’s power? (2) If so, does it violate either the 5th or 14th Amendment? Kennedy’s use of the “laboratory of the states” meant that the majority did not have to add another “class” to the traditional “suspect classification” of race or gender in order to enliven heightened equal protection clause scrutiny (the SCOTUS has never considered “homosexuality” a “suspect” classification). Kennedy used state recognition to achieve the same effect by the back door.
What of the effect? This much is known: DOMA’s prejudicial treatment of married same-sex couples ends, the IRS sticks its hand in fewer pockets, and Mrs. Windsor gets a cheque for $363,053 plus interest. However, States’ ability (still under DOMA) to refuse to recognise same-sex marriages contracted in other States remains on foot: that, I suspect, will enliven future litigation.
Perry is messier and generated confusion among many non-lawyer friends. It will allow same-sex marriages to proceed in California, but that’s it. The case was dismissed for want of “standing.” Article III “standing” requires parties to have skin in the game. One of my Oxford tutors spoke of “the bleeding plaintiff”: there must be demonstrable harm, for which parties seek redress. Why, then, did the petitioners supporting Proposition 8 lack standing? Because they had no blood to show. They were private individuals seeking enforcement of a law Californian authorities had abandoned.
Standing exists to stop the courts from debating societies where individuals with time and money and views can pursue the enforcement of laws to the bitter end, even when the State has chosen not to enforce them. Real cases – called “proper controversies” in both US and English law—would be pushed to one side as people use the courts to interfere in public policy, something properly the business of the legislature.
So, federalism won, and at least in this instance, that’s a good thing. The people of several states get to experiment, without being overridden by the courts, wealthy private petitioners, or the federal legislature.