It’s way too late to insist that our elected officials can’t just make up stuff. But there ought to remain a difference between a tweet and a federal lawsuit.
Some conservative commentators have decried the Windsor case as the new Roe v. Wade. As to legal doctrine, however, the case looks more like a reversal of Harris v. McRae, the Supreme Court decision (barely) upholding the constitutionality of the Hyde Amendment. Further, the case looks like a vindication of the concurring federalist arguments once offered by Justices Catron and Campbell in Dred Scott.
Both Harris and Windsor involved a constitutional challenge, under the Fifth Amendment, to a federal law that affected a due-process right the Court had recently created: the right to abortion, created in Roe v. Wade, and the right to consensual acts of “intimacy,” created in Lawrence v. Texas. Both of those cases were the alleged progeny of the prior due-process cases supporting certain unenumerated, non-economic rights: from Meyer v. Nebraska to Pierce v. Society of Sisters to Griswold v. Connecticut.
In both cases, the federal law involved not criminal prohibition but the distribution of federal benefits in a selective manner that arguably disfavored the exercise of these rights. Moreover, in both cases, the laws were proposed by Republicans, many of whom denied there was any such “right,” for such rights were actually wrongs. In both cases, then, there was some moral disapprobation involved (though probably far more in the case of the Hyde Amendment, for inflammatory words like “murder” were used). In both cases, conversely, the laws were signed by Democratic presidents who affirmed the existence of the alleged constitutional rights, but who believed the federal government did not need to subsidize these rights equally with alternatives.
Both cases involved, in turn, a disagreement as to the meaning of central terms. Opponents of the Hyde Amendment argued that abortion was a “medical” procedure, like any other, and opponents of DOMA argued that a committed, formal same-sex union was a “marriage” like any other. Understandably, opponents of both statutes concluded that the laws arbitrarily discriminated between different medical procedures or marriages, and consequently discriminated unconstitutionally against persons who wanted or needed to fully enjoy the disfavored medical procedure or marriage.
In response, proponents of both the Hyde Amendment and DOMA tended to reply on alternative definitions of “medicine” and “marriage” that were both traditional and teleological. “Medicine” seemed to involve not just the physician’s skill but also the purpose of health. Therefore, abortion was not medicine, insofar as abortion neither cured nor treated any known illness, and had a 100% mortality rate. Marriage likewise involved not just an agreement, but an agreement for the purpose of reproducing and educating offspring. Same-sex relationships, then, could not be marriages; indeed, the custodial rights arising from such “marriages” would make it less likely that children would be raised by their natural parents.
Both cases were decided by a sharply divided, 5-4 Court. And in both cases, the usual swing justice wrote the opinion. In Harris it was Powell; in Windsor it was Kennedy–who had replaced Powell in 1987.
But in sharp contrast, Powell had not been the author of Roe, while Kennedy was the author of Lawrence. (Blackmun, the author of Roe, was in dissent in Harris). Powell voted to restrain Roe, while Kennedy voted to expand Lawrence.
Furthermore, in Windsor, the swing justice-author had, as a helpmate to his due-process claim, a peculiar federalism argument last heard (to my knowledge) in Dred Scott: the United States is required to adopt the definition of a right (like “property” or “marriage”) whenever one of the states has adopted that definition. In their concurring opinions, Justices Campbell and Catron had argued that Congress was bound to respect and protect as “property” whatever any state law had designated as such. One state’s definition of “property” must be “property” in the common national territories. Similarly, in Windsor, one state’s “marriage” must be “marriage” in the common national scheme of taxation and expenditure.
But when Harris was decided, federalism had been on an indefinite sabbatical since 1937.
Windsor thus represents for Lawrence what the dissent in Harris would have been for Roe. And it represents a revival of the federalism championed in Dred Scott. Going forward, then, it is reasonable to conclude that the progeny of Windsor will include not only challenges to state DOMAs, but also challenges to Harris, based on the renewed argument the abortion is a “medical procedure,” and that the federal governments must treat all such medical procedures equally, much as that government must now treat all “marriages” equally, and once had to treat all “property” equally.
 Scott v. Sandford, 60 US 393, 517 (1857) (Campbell, J., concurring) (“The question then arises, whether Congress, which can exercise no jurisdiction over the relations of master and slave within the limits of the Union, and is bound to recognise and respect the rights and relations that validly exist under the Constitutions and laws of the States, can deny the exercise of those rights, and prohibit the continuance of those relations, within the Territories…. And, in my opinion, that clause confers no power upon Congress to dissolve the relations of the master and slave on the domain of the United States, either within or without any of the States”) (emphasis added). Id. at 527 (Catron, J., concurring) (“If the slaveholder is prohibited from going to the Territory with his slaves, who are parts of his family in name and in fact, it will follow that men owning lawful property in their own States, carrying with them the equality of their State to enjoy the common property, may be told, you cannot come here with your slaves, and he will be held out at the border. By this subterfuge, owners of slave property, to the amount of thousand of millions, might be almost as effectually excluded from removing into the Territory of Louisiana north of thirty-six degrees thirty minutes, as if the law declared that owners of slaves, as a class, should be excluded, even if their slaves were left behind.”)