Mary L. Dudziak: Windsor: LGBT version of Reed v. Reed?

Mary L. Dudziak is the Asa Griggs Candler Professor of Law at Emory University. She is the author of War Time: An Idea, Its History, Its Consequences, and Exporting American Dreams: Thurgood Marshall's African Journey

While others are working to fill in an implicit logic to Justice Kennedy’s opinion in Windsor, what it most reminds me of is past decisions that offered a result without a theory – perhaps like  Brown (although the social science footnote suggested that there had been a shift in the way equality was understood).  Or, especially, like Reed v. Reed (1971). 

Reed came only 10 years after Hoyt v. Florida, a case that said it was reasonable for states to take into account the idea that women’s place was in the home when constructing a jury system.  Although equality jurisprudence developed significantly between Hoyt and Reed (e.g. Loving v. VA), the Court did not have a developing gender jurisprudence to build upon.  Reed departed, without saying so, from rational basis review when the Court struck down a state law that gave preference to men when two parents sought to be executor of their son’s estate.  The opinion was brief, sort of like Windsor.  The opinion cited as authority the classic rational basis review case Railway Express Agency v. New York.  The state of Idaho had offered a rational, non-invidious reason: avoiding conflict over administration of an estate.  Justice Burger wrote for a unanimous Court only that

Regardless of their sex, persons within any one of the enumerated classes of that section are similarly situated with respect to that objective. By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause.

There was no discussion of why gender was a problematic classification, and no discussion of levels of scrutiny.  Sort of like Windsor.  Intermediate scrutiny, of course, would not appear until five years later in Craig v. Boren. 

As a result without a theory, Reed turned out to be a signal of something to come. It was an indication that the rights of women would finally be taken seriously by the Court.  We might also take Windsor as a signal that more robust equal protection rights for LGBT folks is on the way.  But this makes Windsor’s analytical paucity more striking.  The case it not a sea change, like Brown or Reed, because it follows Lawrence and Romer.  As compared to gender discrimination, it is taking the Court a long time to find a theory.