Federalism or Extreme Makeover of State Domestic Regulations Power? The Rules and Rhetoric of Windsor (and Perry)

The opinion of the Supreme Court of the United States in United States v. Windsor is express in its affirmation of the right of states to regulate family law; it affirms state power at least twenty-nine times. In repudiating the federal definition of marriage, Windsor seems to uphold state regulation of family law. At the same time, Hollingsworth v. Perry provides a background for considering democratic involvement in the process of state regulation of family law and in effect invalidates by lack of standing a voter-approved state referendum defining marriage for California. Thus, the characterization of federalism in Windsor seems to conflict with the actual outcome of Perry.In light of this apparent contradiction, this article considers whether “the traditional power of States to define domestic relations” is affected by the mandate that the federal government refrain from intervening in marriage entry regulation when one state's ability to define marriage was effectively denied in Perry. An overview of some collateral effects of both the rules and rhetoric of Windsor and Perry on state family law regulation illuminates this question. Such an overview reveals that these cases do more than simply uphold and clarify federalism; at least to some extent, they impede the ability of states to define domestic relations, with practical and ideological ramifications for family law and liberty interests. First, Part I provides a background on the dicta of Windsor heralding state regulation of marriage. Part II considers and examines collateral effects of Windsor and Perry on family law in three categories. Those categories include federal conflicts with state regulations, interstate conflicts, and family law policy. Part III discusses an ideological shift Windsor and Perry promote in family law and the effects of the Supreme Court's endorsement of this new ideology upon personal liberty interests and marriage regulation