Federalism’s Double-Edged Sword

Tom Goldstein explains how using states’ rights to strike down DOMA could box in SCOTUS on Prop 8:

[I]f DOMA is going to be decided as a federalism case, Hollingsworth [v. Perry] becomes a much harder case for the plaintiffs. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

In fact, there is a realistic chance that the Court’s most conservative Justices understood that dynamic from the beginning and for that reason voted to grant certiorari in Hollinsgworth. In effect, they would put the Court in the box fully grappling with the implications of a ruling invalidating DOMA. To then also invalidate Proposition 8, the Court would have to go quite far in applying heightened scrutiny and invalidating the traditional definition of marriage, notwithstanding its professed concerns for states’ rights.