by Mark A. Fulks & Ronald S. Range III

The United States Supreme Court’s decision in United States v. Windsor was perhaps the most anticipated decision of the October 2012 Term. By invalidating the Defense of Marriage Act (DOMA), the Court settled one hotly debated issue. But the Court’s rationale gives rise to a litany of questions. Under the rubric of the Fifth Amendment, the Court invalidated a federal statute that denied certain citizens the right to liberty, which was rooted in the state’s definition of marriage, and the equal dignity the state sought to protect. In doing so, the Court announced a new test to determine where supreme definitional authority resides in the relationship between the state and federal governments. Although the parameters of the Windsor test are not entirely clear, the analysis includes (1) the scope of the federal enactment, (2) the existence of a class protected by state law, (3) an issue that is within the exclusive province of the states, (4) the uniform treatment and equal dignity of class members, (5) the societal impact of the class, and (6) the imposition of restrictions and disabilities on the class by the federal government. The restrictions and disabilities may include the imposition of inequality on a subset of the state-defined class, the imposition of burdens on families, and the divestiture of duties.

Although the Court limited its holding to the lawful marriages that DOMA affected, there will undoubtedly be attempts to apply the Windsor analysis to other contexts. It is generally understood that the states’ core police powers have always included the authority to define criminal law, and it is in the criminal arena that Windsor may be applied. For example, many states have adopted procedures through which criminal defendants may have their convictions expunged and thereby have their dignity and status restored. Many states have also adopted procedures through which convicted felons may have their rights of citizenship, such as the right to possess firearms, restored. Similarly, several states have chosen to permit the use of marijuana for qualified patients (and even for recreational use in two states). Yet, in each of these contexts, the federal government refuses to recognize the protection afforded to these citizens by the states and, in doing so, imposes considerable burdens and disadvantages on them. Windsor may afford these individuals grounds upon which to challenge the federal government’s actions.


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