In United States v. Windsor, the Supreme Court held that Section 3 of the Defense of Marriage Act violated the Fifth Amendment. This Essay examines the unusual right to recognition that forms the basis of the Court’s decision and explains how such dignity rights have a problematic relationship to individual rights and to the structural protections of federalism. A right to recognition, standing alone, has never been part of our constitutional jurisprudence. To the extent that dignitary themes arose in previous cases, they were incidental to the finding of individual rights. I argue that there is good reason why recognition has not been afforded constitutional protection. Claims for recognition are only derivative of individual rights and cannot apply universally. Moreover, the dignity of recognition, because not an individual right, creates an unresolved tension with existing state laws that prohibit same-sex marriage—a tension between the dignity of recognition and the dignity of state sovereignty.
Volume 99
Noel Canning v. NLRB – Enforcing Basic Constitutional Limits On Presidential Power
On January 4, 2012, President Obama purported to make three “recess” appointments to fill preexisting vacancies on the National Labor Relations Board (“NLRB”). The President made these appointments despite the Senate’s convening the day before to begin the Second Session of the 112th Congress, and despite the Senate’s convening again two days later for a session on January 6, 2012. Because the so-called “recess” was actually just a three-day break during the Senate’s session, the appointments were immediately controversial. That controversy prompted numerous legal challenges, including our case, Noel Canning v. NLRB, in which the U.S. Court of Appeals for the D.C. Circuit issued an opinion last January holding that the appointments contravened two of the Constitution’s basic limitations on the recess appointments power and were thus invalid. The executive branch recently announced its intention to seek certiorari from the D.C. Circuit’s decision, and so Noel Canning looks like it is headed for the Supreme Court.
Protecting Same-Sex Marriage and Religious Liberty
In Hollingsworth v. Perry and United States v. Windsor, or perhaps in some more clearly justiciable case a few years hence, the Supreme Court will decide whether states can prohibit same-sex marriages. The Becket Fund for Religious Liberty argued in both pending cases that protecting religious liberty is a rational basis for banning same-sex marriage.
The conflict between religious liberty and gay rights is bad for both sides and dangerous for the American tradition of individual liberty. The Court can protect the rights of both sides.