Chris Bower


In June of 2013, Justice Anthony M. Kennedy authored the majority opinion in United States v. Windsor, striking down the Defense of Marriage Act as an unconstitutional "deprivation of the equal liberty of persons." Instead of applying the Supreme Court's traditional tiers-of-scrutiny framework, Justice Kennedy's due process and equal protection analysis weighed multiple factors: the significance of the liberty interest at stake, the extent to which similarly situated individuals were being treated differently under the law, the presence of animus or moral disapproval of a politically unpopular class in the law's purpose and effect, and the legitimacy and strength of the government's policy justifications. Justice Kennedy's approach in Windsor incorporates important due process and equal protection considerations that the tiers-of-scrutiny framework would have failed to capture. His more holistic analysis, however, lacks the clarity and precision necessary to guide future cases effectively, particularly with regard to the constitutionality of state bans on same-sex marriage.

If Justice Kennedy's nuanced and integrative approach is to endure, additional work is needed to provide a methodology that is detailed, coherent, and replicable. This Comment presents a conceptual framework that courts could use to engage in the type of weighing called for inWindsor while avoiding the decision's vulnerabilities. Through the use of an approach in philosophy and normative economics called "deontologically constrained cost- benefit analysis," the proposed framework balances the various utilitarian and deontological considerations in the same-sex marriage debate with greater clarity. Further, as applied to state bans on same-sex marriage, the proposed framework demonstrates why such bans ought to be declared unconstitutional: the purported costs of same-sex marriage, even when viewed in a light most favorable to opponents of same-sex marriage, are insufficient to override the relative strength of the due process and equal protection interests of gay and lesbian individuals.



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