Alvaré on Windsor and a federal definition of marriage

Professor Helen Alvaré testified in March before the Kansas Senate Judiciary Committee in connection with a proposed Kansas Religious Freedom Preservation Act. The written version of her testimony, worth reading in full, touches on an underappreciated feature of Windsor and post-Windsor cases finding a constitutional right to same-sex marriage. Whether explicitly or implicitly, these cases develop and deploy a federal-law-based definition of marriage. A federal-law-based definition of marriage was not necessarily to resolve Windsor, which on its surface only invalidated but did not establish a federal definition of marriage, but such a federal-law-based definition of marriage is necessarily present in the post-Windsor cases extending the decision to invalidate state definitions of marriage that require one man and one woman for marriage. 

Alvaré writes: 

[A]fter paying lips service to federalism, [Windsor] substituted a new, federal definition of the meaning of marriage--an extraordinary and adult-centric meaning--for the meaning adopted by the vast majority of states, and every one of the relevant, prior Supreme Court opinions treating marriage. To summarize a great deal of material, the Supreme Court defined marriage as: the way people define themselves, as persons committed in a special emotional and sexual way to another person; as an acknowledgment of an intimate relationship between two people; as a protection of a person's "personhood and dignity"; and as a means for same-sex couples to "enhance their own liberty" and equality with opposited-sexed married couples.

Another interesting aspect of Professor Alvaré's testimony was a discussion of the limits of RFRA-style laws in protecting the religious freedom of individuals and businesses "who wish to live freely and conduct their businesses in [a state] with faithful integrity to their deepest beliefs, should legal recognition of same-sex marriage be imposed upon [that state] by a federal court." (Although it is not yet available online, Professor Alvaré's testimony as delivered also included a list of detriments conscientiously objecting individuals or businesses could suffer if same-sex marriage were imposed on a particular state. I will post or link to this list if it becomes available online.)