The Federalist Case Against the Defense of Marriage Act

The debate over gay marriage and federal power reaches the Supreme Court.

During the February 2011 oral argument in Bond v. United States, Supreme Court Justice Anthony Kennedy chided one of the lawyers standing before him for giving too little respect to the principles of federalism. The case arose from a criminal defendant’s 10th Amendment challenge to a federal charge. “Your underlying premise,” Kennedy complained, “is that the individual has no interest in whether or not the State has surrendered its powers to the federal government, and I just don’t think the Constitution was framed on that theory.”

Several months later, in his majority opinion in the case, Kennedy expounded further on the connections between federalism and individual liberty. “The federal system rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one,’” Kennedy wrote. “The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.”

Next week the Supreme Court will get an opportunity to test Kennedy’s ideas on federalism and liberty when it hears oral argument in United States v. Windsor, the case arising from the legal challenge to the 1996 Defense of Marriage Act (DOMA). At issue is whether Section 3 of DOMA, which forbids the federal government from recognizing same-sex unions that are permitted under state law, violates the equal protection component of the Fifth Amendment.

The Obama administration, which previously defended DOMA in court, now favors the law’s destruction. “Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society,” the government’s brief states. “It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest.”

That argument is likely to resonate on the Court, especially among the liberal justices. But Windsor is not just an equal protection case; it’s a federalism one as well. That point was driven home earlier this month when a group of prominent constitutional scholars, including Ernest Young of Duke Law School and Randy Barnett of the Georgetown Law Center, submitted a powerful friend of the court brief attacking DOMA for exceeding the proper limits of federal power and trampling on legitimate state authority. “States derive the power to define marriage from their police powers, but Congress has no such power,” the brief holds. “Nor can Congress justify DOMA under the Commerce, Spending, or Necessary and Proper Clauses.” In short, “Congress has no legitimate interest in defining marriage because it lacks enumerated power to do so.”

If that sounds like the sort of argument the Supreme Court’s conservative members often make, it’s because they do. The federalism brief is tailor-made to appeal to right-leaning advocates of federalism. As a result, it’s very likely to influence Kennedy. But what about the other conservatives? Will it draw their support in this hot-button case?

Chief Justice John Roberts may at first seem like a possibility, especially in light of his aisle-crossing performance last year in National Federation of Independent Business v. Sebelius, where he sided with the liberals to uphold the Patient Protection and Affordable Care Act. But in that case, Roberts voted to affirm federal power, a common theme in his jurisprudence. Indeed, if you review Roberts’ record, you’ll find not only broad support for federal authority, such as his 2010 vote to give federal officials wide power under the Necessary and Proper Clause, you’ll also find repeated statements urging judicial deference to Congress. In his health care ruling, for instance, Roberts declared, “It is not our job to protect the people from the consequences of their political choices.” It’s not difficult to imagine the chief justice striking a similar pose while upholding the Defense of Marriage Act.

Justice Clarence Thomas, on the other hand, may prove more receptive to the federalist case against DOMA. Thomas’ record includes strong arguments in support of state over federal power on issues as different as medical marijuana, consumer safety laws, and the sale of body armor to felons. Nor has Thomas had any problems breaking with his usual conservative allies in a case where his federalism principles might lead him to reach a “liberal” result.

Between the equal protection challenge on the one side and the federalism challenge on the other, the Defense of Marriage Act stands on shaky constitutional ground. If either Kennedy or Thomas (or both) accept one of those arguments against the law, DOMA’s days are numbered.

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  • GregMax||

    You forget that power makes it right. Politicians don't respect the Constitution but are mostly ignorant of it's words and meaning, or else willfully ignore it because it is inconvenient to the exercise of their power. Government always has to be kept from gravitating toward tyranny.
    It's supposed to be balanced by an informed citizenry and honorable representatives.
    As to DOMA - it was a political law and should be eliminated. In my opinion, if it isn't hurting someone else or you directly . . . butt the fuck out! How's that for a constitutional philosophy? We could call it the "Mind your own f-ing business doctrine".

  • R C Dean||

    As usual, the liberal wing will vote en bloc for the fashionable cause of the day. Could we be looking at a decision to overturn DOMA, with a stew of concurring decisions that leave no principled guidance?

  • Tony||

    Equal rights is always in style.

  • R C Dean||

    The equal rights argument assumes the conclusion, namely, that marriage is between two persons, and not between a man and a woman. Only if marriage is defined as being between two persons does an "artificial" restriction on that definition to exclude gay marriage violate equal protection.

    See, the state prohibitions on inter-racial marriage were such an artificial restriction on marriage between a man and a woman. Before you can conclude that someone has an "equal right" to marriage, you have to decide what marriage is.

  • Mickey Rat||

    Oh come on, it is obvious that there are no differences between men and women, they are perfectly interchangeable, especially when it comes to matters relating to sex.

  • Tony||

    You're the one begging the question. Marriage can be and has been redefined to include same-sex couples. Whether it's constitutional for it to be restricted to opposite-sex couples is the entire question. You don't think these same bullshit arguments weren't deployed in favor of anti-miscegenation laws?

  • ||

    The fact that the arguments were applied to anti-miscegenation does not, automatically, make them void in this context. At some point, the definition must be fixed in order to mean something or should just be erased entirely. Presumably, say, four human men, one human woman, and six female cats aren't offered the same property, immigration, medical, and other legal protections as a couple of any given composition.

    And I pose this argument legitimately because this is one of the main reasons I oppose the rather strict "gay" marriage. I see no legal reason why a couple with an au pair or any number of persons shouldn't be able to grant each other the same privileges as a couple for the same reasons, in fact, I see a greater benefit. If a 20,000 person corporation can be granted personhood and shared protections in the name of profits, why the hell couldn't a squad of 12 service members do the same in the name of family?

    It irritates me to no end that the focus of marriage and the government in this debate is circumscribed to sex by both sides.

  • ||

    “Congress has no legitimate interest in defining marriage because it lacks enumerated power to do so.”

    Makes you wonder why the federal apparatus needs to be dishing out other people's money to couples who are married under the laws of their respective states, doesn't it?

  • Professional Target||

    Government should not recognize gay marriage. Government should not recognize any marriage. This should be a simple matter of freedom of association and contracts.

  • Eduard van Haalen||

    I suspect that, while there may be a few principled liberals who really believe in federalism on this subject, most of them are simply concern-trolling - "well, you conservatives like federalism, right? Well then, you should strike down this law because the federal government shouldn't second-guess the states where marriage is concerned." Then they will scarcely pause for breath before explaining how the federal courts should strike down Prop 8.

  • elfprince13||

    I don't know of Ernest Young, but Randy Barnett is well known as a libertarian legal theorist.

  • Eduard van Haalen||

    In this case, "liberal" includes left-libertarians, but is not limited to them. Maybe I should define my terms better.

  • elfprince13||

    Not sure how you're defining left-libertarian in this case, but I'm pretty sure he isn't what you'd typically classify as one. But don't take my word for it, look him up. His positions on federalism in particular are well known.

  • Xenocles||

    I actually think the federalist case against DOMA is the strongest legal one. The federal government is not delegated the power to regulate marriage. Therefore DOMA is an unconstitutional overreach in its attempt to set a national standard for marriage. The way I see it, if the feds offer a benefit to married couples, they have no choice but to accept at a minimum the marriage licenses of any state as proof of a marriage.

    There's a potential equal protection case to be made but it depends on the judges' reading of the 14th Amendment and who/what it includes. Skip all that and go for the simple fix to the problem.

    In addition to this spending must be cut.

  • R C Dean||

    Try this, for a rebuttal:

    The difficulty with the federalist argument is that DOMA does not prohibit states from recognizing gay marriage. The feds aren't necessarily intruding on the state's prerogatives at all, but merely stating that the feds are not bound by what the states do with respect to the fed's own business. Assuming the feds have the power to enact the laws that dish out rewards and punishments based on marriage, that power includes the authority to define marriage for purposes of those laws.

  • R C Dean||

    That said, the bit in DOMA about state's not being required to recognize gay marriage in other states might be ultra vires, if SCOTUS concludes that the Full Faith and Credit Clause requires recognition of those marriages.

    That opens a can of worms, though, as to what licenses (CCW?) a state can refuse to recognize.

  • Xenocles||

    But without the power to define marriage - which is clearly not granted by the Constitution - the feds have no choice but to rely on those who do have that power - the states. And since the states are bound to grant full faith and credit to each others' acts, while a state might not have authorized a particular union when given the choice it has no choice but to recognize it if completed in accordance with the laws of another state. Choosing to ignore a subset of duly performed marriages seems arbitrary and capricious.

    In addition to this, spending must be cut.

  • Tony||

    DOMA forbids the feds from recognizing gay marriages happening in any state. Federalism is irrelevant, as it usually is. Maybe you're right: it leaves state power intact. Problem is it's a national question by definition. Federalism that is so extreme that it dumps full faith and credit is not a good thing.

    Are you playing sarcastic devil's advocate, or are you really straining this hard to oppose freedom?

  • Mickey Rat||

    "Between the equal protection challenge on the one side and the federalism challenge on the other, the Defense of Marriage Act stands on shaky constitutional ground."

    So DOMA is an unacceptable federal intrusion into the state's powers to define marriage, but if equal protection grounds win, the federal government will dictate to the states a definition of marriage. Was Root giggling insanely with blatant disingenuous of the pro-homosexual marriage supporters?

  • RightNut||

    Of course the issue of whether states should be defining marriage, and discriminating against people based off that, won't be touched. The notion that only gay people are discriminated against by the lack of federal recognition of their type of union to be laughable.

  • R C Dean||

    The issue is this: is one stae's definition of marriage binding on other states and/or the federal government? Does one state's adoption of gay marriage preclude other states from having their own definition, for their purposes? Does it preclude the Feds from having a different definition for its purposes?

    Is defining marriage for purposes of a given benefit/burden a lesser included power of the power to grant that benefit/impose that burden?

    Not easy questions, I think. Before you answer, think of some status/license you don't/do want to see exported, and see what you think.

  • SusanM||

  • Capt Ace Rimmer||

    I know those fuckers could twist the commerce clause to give the federal govt the power to regulate marriage.

  • SumpTump||

    That guy knows he is talking a LOT of smack!

    www.PC-Privacy.tk

  • AdamJ||

    I'm interested in seeing Scalia's twisted logic on this one. He loves the constitution and federalism as long as it doesn't go against his religious sensibilities

  • Eduard van Haalen||

    Incidentally, I wondered how the amicus brief would deal with the provision in the immigration law by which if an American marries a foreigner in a particular state and the marriage is perfectly valid under that state's laws, the federal immigration authorities can nevertheless refuse to recognize the marriage if it's deemed "fraudulent" and refuse to let the husband and wife, married under state law, to live together in the United States.

    http://en.wikipedia.org/wiki/M.....ts_of_1986

    The brief lamely explains that this law "does not redefine marriage as DOMA does. It simply says that otherwise married couples cannot qualify for this particular benefit. Equally important, it serves Congress’s “plenary” power to govern immigration and its need to close gap ing loopholes in immigration
    restrictions."

    Do you get it? It's perfectly constitutional, and perfectly respectful of the states, to tell an American citizen, duly married to a foreigner under state law, that (s)he must live abroad (forfeiting an American's fundamental right to live in his or her own country) in order to enjoy the "particular benefit" of conjugal union with a spouse. Because if you're in America and your spouse is kept abroad, conjugal union will not be possible, thus (I would have thought) defeating a somewhat key purpose of marriage. But that's just me - these are prestigious con law professors and they know what they're talking about.

  • Eduard van Haalen||

    Or maybe the American spouse can fly periodically to the foreign spouse's country for conjugal visits - this way, they will enjoy their conjugal rights less frequently than if they were prisoners.

  • Eduard van Haalen||

    "In our age of no-fault divorce, an oxymoron if there ever was one, the institution [of marriage] is meaningless."

    Have you looked at the amicus brief? Because that's certainly *not* the argument they're making. On the contrary, the brief cites *Loving v. Virginia* that marriage is one of our "vital" rights.

    "tony-level logic"

    You're thinking of the amicus brief. The brief simultaneously maintains that (a) it's up to the states to define marriage, and the federal government must in general follow the definitions set by the various states but (b) the federal government can refuse to recognize a marriage between an American citizen and a foreigner, requiring the citizen to leave the country to enjoy conjugal right with a foreign spouse, even if the state in which the citizen lives solemnized the marriage and recognizes the couple as married.

  • Eduard van Haalen||

    It is perfectly possible for an intelligent person to depend proposition (b), based on the federal government's alleged plenary power over immigration. It is absurd to simultaneously try to defend both (a) and (b), declaring that the federal authority is plenary enough to ignore a state's definition of marital status even for the purpose of residence rights, but not plenary enough to decide (for instance) which parties to state-recognized marriages are entitled to tax breaks, pensions, etc.

    I mean, sure it sucks if the feds deny Social Security survival benefits to a widow(er), but that doesn't affect the nature of marriage as fundamentally as keeping two spouses physically apart (or requiring the American spouse to leave the country).

    The brief's position is that it's an intolerable violation of the 10th Amendment to deny someone widow's benefits under a government spending program, but perfectly OK to deny marital cohabitation.

    So if you're trying to defend the amicus brief, your argument misses the boat. (or in your case, jumps out of the plane)

  • Eduard van Haalen||

    (Or perhaps you missed the point that I was simply criticizing the brief's authors on their own terms, not taking an independent position on the immigration law).

  • Eduard van Haalen||

    On p. 32, the brief sets down principles which are hard to reconcile with the federal immigration law's regulation of marriage:

    "DOMA also offends same-sex couples’ individual interests in stability and predictability of their basic personal relationships.
    DOMA creates two contradictory marriage regimes applicable within the same territory. It thus undermines both the public and private significance of same
    -sex couples’ State-sanctioned
    marriages because it tells them that their otherwise valid marriages are invalid in the eyes of the federal government. And it blurs vital lines of
    political accountability by forcing individuals to look to two sets of laws and officials for redress."

    There is no way to reconcile this with the immigration laws, which create "two sets of laws" and officials - state and federal - regarding marital status in certain citizen-foreigner marriages. It certainly interferes with "stability and predictability."

    But the brief-writers know that the Supremes aren't going to give up the immigration law, so they simply minimize the fact that it contradicts their own professed principles. As I suspected they would.

  • Eduard van Haalen||

    Is there a (b)?

  • grey||

    Okay, I've been on another blog trying to get a liberal to articulate an ethical principle. A single ethical principle. One statement of moral/philosophical code with an action/behavior akin to NAP, or even Ben Franklin's list of ethical virtues, or free association principle, or anything. Some communist version of whatever morality is applied in a statement of ethics as a code you might apply logically across various situations to see which ethical principles withstand scrutiny and which provide undesirable outcomes. I've tried everything, it's like I'm speaking spanish. Didn't liberal arts majors get an ethics class thrown in somewhere? I'm about to pull my hair out, I'm beginning to think libtards do not have ethics, I mean honestly, no hyperbole. The liberals may not have applied any critical thinking to their beliefs. I long for arguments with red team, they had wrong headed principles, they would articulate a moral/ethical principle, sometimes straight from the bible. But you could then throw some logic and critical thinking on top and toss it back, how do you argue with unethical people that are rhetoric without principle?

  • Eduard van Haalen||

    "I've been...trying to get a liberal to articulate an ethical principle."

    And I'm sure you'll succeed, just after Sisyphus finally gets that stone over the hill.

  • Tony||

    Why does critical thinking necessarily lead to strict ethical norms?

    Being a liberal means not knowing every answer to every problem. But I'll help you out: do what maximizes the welfare of human beings as individuals.

    Critical thinking leads to more questions than answers. Libertarians really claim to have all the answers. What should that tell you? (That they're stupid.)

  • Eduard van Haalen||

    "I don't know what the answer is, but I *do* know that the choice you just made was wrong, and I'm going to put you in prison for it!"

  • grey||

    Another tonyism, admitadly it is a little refreshing to see socialist just come out and say they are unprincipled.

    Let me fix your authortarian edict:

    The State shall use whatever force is necessary to maximize the welfare of individuals as the State may determine.

  • Kurbster||

    That's funny....this is the same argument that my father has, and he watches Glenn Beck religiously

    take your collectivist bullshit elsewhere. Gays marrying doesn't deny your right to marriage, so it sounds to me you want to deny rights because of religious reasons (which is not OK in a free and secular society)

  • Tony||

    No, you're an idiot.

  • grey||

    Why should I care what someone thinks is normal? The State should especially not be involved. How can you be on the Reason blogs and still comignle society and government as if they are the same?

    The contract bundle, that comprise Civil Unions, shoudl be for everyone that wants it, just leave whatever additional contracts, social convention, or related affiliation standards of 'marriage' with whatever groups people may want to free associate. Get your civil union, then go get an official looking marriage certificate without whatever voluntary affiliation standards may apply from your Priest or you Marijuana Dealer at the Bong Club.

    The taxation and entitlement issue is a governemt created problem, you don't curtail civil liberties to fix a different government created problem. Create a fair tax code in which we all pay the same real dollar amount for services. Ohh, wait, I'm using 'fair' as meaning exactly equal share.....that meaning has changed. Help, I can't express myself anymore 1984 Word Speak has me boxed in!

  • aikainn||

    Equal rights is always in style.

  • Pi||

    Tony is an adbot? Suddenly all of his comments make perfect sense and the universe is crystal clear.

    All is right.

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  • mauboy_j||

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  • J_West||

    Gays marrying doesn't deny your right to marriage, so it sounds to me you want to deny rights because of religious reasons (which is not OK in a free and secular society)

    Supposing you own a hotel and have a special offer for married couples.
    Supposing you refuse to recognize same sex married couples.

    I assume the homosexual community will respect your right to deny them the same rates offered to heterosexual couples, right?

    Basic libertarian principles tell us that people have a right to control what happens on their own property; and that the relationship between a hotel owner and potential clients is contractual with the state having no right to dictate terms.

    Do the advocates of homosexual marriage respect these libertarian principles? Or will they go running to Big Government to initiate force to get their way?

    There is a very serious issue here with homosexual marriage. It is simply one more front for the expansion of state power, along with the usual raft of lawsuits and show trials.

    It makes utterly no sense for libertarians to support homosexual marriage unless the homosexual community first supports libertarian principles regarding private property and contracts.

  • Barrett70||

    If you think Frank`s story is terrific,, last pay-cheque my friend's brother basically also made $4230 just sitting there a ninteen hour week from there apartment and the're buddy's half-sister`s neighbour done this for 3 months and worked and got paid more than $4230 in there spare time on their mac. applie the information from this address, http://www.wow92.com

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  • lendapatricia||

    upto I looked at the bank draft four $6036, I accept ...that...my brother woz like they say actually bringing home money parttime from there pretty old laptop.. there uncles cousin had bean doing this for under 19 months and at present repayed the dept on there cottage and bourt a gorgeous Renault 4. we looked here,
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  • messup||

    Progressive New Left Activists back-door approach to altering everyting American.
    History repeating itself!
    LGBT is being used by Progressive New Left Activists the same way Germany's minority disparate groups were used in the 1920's, lulling its citizenry into allowing their candidate and (National Socialism) wresting control of then: Germany's laws, courts, all jurisprudence and ultimately everything German. Bolsheviks and Menscheviks (Stalin) the same...just read history.
    Gun Control (America's Second amendment) and Gay Movement (America's First amendment) are focused on fundamentally altering America's course in history. If the Bill of Rights can be substantially altered, changed forever, America's Constitution (of which the Bill of Rights are its first ten amendments 12/15/1791-George Mason) is also up for grabs...America's form of 1)governance, 2)financial system, 3)education and even its 4)religion (if allowed to change) will forever...alter the course of Americas history.
    Remember Obama's prophetic words? We Will Transform America(he lectured the Constitution in Chicago). Powerful, deep pocketed individuals are financing this change for:1)greed, 2)power and 3)corruption.Wake-up America. She's on life support! Pray. Amen. Visible proof of this quantum effort currently underway is available! Where are the OWS'ers? And WTO'ers? Anarchists? NAH! All, strangely quiet!!! "All's quiet on the Western Front!" God Bless America!! Stand beside Her, and Guide Her!!!

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