期刊名称：No Foundations : Journal of Extreme Legal Positivism
电子版ISSN：1797-2264
出版年度：2014
期号：11
出版社：CoE Foundations
摘要：Two recent decisions of the United States Supreme Court, handed down in June 2013, have been attracting considerable attention—most presumably because of their ‘bigger picture’ significance in the context of public political debate in the area of equal protection. The Court’s pronouncement in United States v. Windsor was concerned at its center with the contested constitutionality of the federal Defence of Marriage Act [DOMA] of 1996, according to which marriage was defined as a ‘bond between one man and one woman’. The Court struck down sec. 3 of the Act, holding it to be a violation of the equal protection clause under the 5th amendment. Decided the same day, in Hollingsworth v. Perry, the Court ruled that a petitioner group that defended the constitutionality of a California constitutional amendment rendering same-sex marriages illegal had no standing, where the governmenthad opted not to stand trial to defend this amendment (the so-called Proposition 8). These two decisions stand squarely within a much belabored context of legal, political and cultural battles over equal protection and privacy rights. Yet, if we wanted to clearly demarcate different legal fields touched upon by these cases, we would very soon find ourselves enumerating one regulatory regime after another. As the author of the opinion in Windsor, Justice Kennedy, noted, the enactment of DOMA put into place a statute that would directly and indirectly have an impact on ‘over 1,000 federal statutes’, with the consequence that the decision, on its face concerned with a particular legal definition operated in fact in many different legal arenas simultaneously, ranging from constitutional to social insurance law, from housing to trusts and estates, from tax law to family and adoption law as well as landlord and tenant law. At the same time, all of these fields would be mobilized in a context, which gives rise to intriguing questions of procedural law and federalism.
