The critics have panned Justice Kennedy’s majority opinion in United States v. Windsor. Supporters and opponents of same-sex marriage have together bemoaned what may be called Kennedy’s “doctrinal obscurity” in Windsor. Doctrinal obscurity describes the opinion’s failure to justify striking down Section 3 of the Defense of Marriage Act (DOMA) using any discernable accepted test for substantive due process or equal protection. Specifically, Kennedy does not ask whether DOMA burdens a right “deeply rooted in this Nation’s history and tradition,” nor does he identify sexual orientation as a suspect or semi-suspect classification, nor does he subject DOMA to explicit rational basis review. To the critics, Justice Scalia’s dissenting characterization of the majority’s analysis as “nonspecific hand-waving” seems right on the money.
Yet this line of critique assumes that the Court should always aspire to specificity and clarity in its doctrinal analysis. In this brief essay, I seek to challenge that assumption and argue for the occasional virtue of doctrinal obscurity. My argument here concerns situations like that presented by DOMA where the Court confronts ugly social realities that have become codified in unpleasant laws or distasteful precedents. Like speaking with a homophobic relative at a series of family dinners, these situations are inherently awkward and sometimes less-than-direct words are the best way to move the conversation in a productive direction. Sometimes respect for etiquette counsels that the Court should dance around a little before declaring: “the Constitution does not allow this.” In my view, Justice Kennedy’s obscurity in Windsor is justified by such doctrinal etiquette.
To flesh out these ideas, I identify earlier instances of virtuous doctrinal obscurity in the Court’s equal protection and due process jurisprudence and show how these cases employed a strategy of polite obfuscation to deal with embarrassing precedent. Importantly, these cases – Skinner v. Oklahoma, Department of Agriculture v. Moreno, Romer v. Evans, and Lawrence v. Texas – also provide the legitimate doctrinal justification for the result in Windsor. In the end, I argue that doctrinal obscurity served a useful role in all of these cases by smoothing over difficult constitutional contradictions and facilitating the transition from a regrettable past to a more promising future.
The Virtue of Obscurity, 59 Vill. L. Rev. Tolle Lege 17 (2013)