Clarence Thomas vs. the Defense of Marriage Act

Later this month, the Supreme Court will hear oral argument in United States v. Windsor, the case arising from the legal challenge to Section 3 of the Defense of Marriage Act, which forbids the federal government from recognizing same-sex unions that are lawful under state law. Last Friday, a group of legal scholars whose work focuses on federalism submitted a friend of the court brief in the case, urging the justices to invalidate Section 3 because it is not a valid exercise of federal power and therefore violates the Constitution. On Twitter, reporter Mike Sacks of The Huffington Post noted the brief and asked, “could it pick up Thomas?”

It might. Among the scholars who signed on to the brief is Georgetown law professor Randy Barnett, one of the legal architects behind last year’s Obamacare challenge and also the losing lead attorney in the 2005 medical marijuana case Gonzales v. Raich. Justice Clarence Thomas accepted Barnett’s theories on the limits to federal power in both those cases and has also cited Barnett’s work in other opinions.

But just as important, Thomas has a tendency to break with the Supreme Court’s conservative bloc when federalism principles are at stake in a case that is otherwise seen to advance a liberal political agenda—which is basically the Defense of Marriage Act controversy in a nutshell.

In 2009, for instance, Thomas concurred in the Court’s 6-3 ruling in Wyeth v. Levine, which said that federal law did not trump a state lawsuit filed against a pharmaceutical corporation, even though the drug-warning label that was at the center of the lawsuit had been approved by the Federal Drug Administration. (Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito voted in dissent.) Thomas reached a similar conclusion in another regulatory federalism case, Williamson v. Mazda Motors of America, where the Court held that federal law did not trump a more restrictive state law regulating seat belts. Thomas’ concurrence in Williamson even earned him some kudos from the left-leaning Constitutional Accountability Center, who called Thomas a “surprising ally for progressives” in the case.

Since Thomas is unlikely to ask any questions during the March 27 oral argument over the Defense of Marriage Act, we won’t know his views for certain until late June, when a decision is expected in the case.

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  • John||

    So federalism is really really important when talking about the defense of marriage act but not so important when talking about California not recognizing gay marriages. It is almost as if Reason's positions are results driven or something.

  • Eduard van Haalen||

    On Volokh.com, one of the signatories on the Section 3 brief, Jonathan Adler, said (in the comment thread): "Although I support gay marriage, I do not believe Prop. 8 or state laws defining marriage as a union between one man and one woman are unconstitutional."

    He adds that "I was not approached about signing a Prop. 8 brief" and that he "would have joined a pure federalism brief in the [Prop 8] case if I'd had the opportunity (and if the brief truly stuck to the federalism issues, and did not smuggle in anti-same-sex marriage arguments)."

    I'm curious how many of those who are concern-trolling about federalism and Section 3 of DOMA would have the courage of Prof. Adler and defend the authority of California, under federalist 10th Amendment principles, to enact Prop 8.

  • Eduard van Haalen||

  • John||

    I cannot for the life of me see how you can say that Section 3 of DOMA is wrong but then also say that Prop 8 is unconstitutional.

  • Eduard van Haalen||

    So, you're invoking technicalities to deny gay people their Fundamental Human Rights (TM)? You must be a fascist. A gay fascist.

    /sarc

  • Doctor Whom||

    The 10th Amendment limits federal power. The equal-protection clause of § 1 of the 14th Amendment limits state power. Here's the text of the 10th Amendment (emphasis added):

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    If a power is not delegated to the United States by the Constitution and is prohibited by it to the States, then neither the United States nor the States have that power.

  • John||

    So states don't have the power to define marriage? That will come as a hell of a surprise to every family law judge out there.

  • ||

    As per the 14th Amendment they can't discriminate on the basis of sex, so no they don't have the power to define marriage as between two people of the opposite sex any more than they could define it as two people of the same race.

  • Thane of Whiterun||

    If a power is not delegated to the United States by the Constitution and is [not] prohibited by it to the States, then neither the United States nor the States have that power.

  • Proprietist||

    First of all, speculating on Thomas's motivations for a possible ruling is not exactly arguing one way or another.

    Secondly, federalism is not a good in and of itself. States are obligated by the 14th Amendment to equally protect the privileges and immunities of their citizens. If states fail to do so, I have no problem with the federal government intervening, especially in the case of marriage, which applies to federal issues like immigration law. For that reason, perhaps marriage should be filed at the federal level.

    Federalism is great whenever the federal government is preventing states from expanding individual liberty, not great when the states are violating individual rights and failing to provide equal protections.

  • Proprietist||

    To clarify, I don't think marriage should be "filed" with government at all, but we still need to figure out how to accomodate the immigration question regardless.

  • John||

    Immigration is up to the feds. There is nothing to say states can't have different policies for marriage. In some states it is legal to marry you cousin. Some states it is not. That hasn't been a problem in immigration law. Why would gay marriage be any different?

  • ||

    If I wanted to to marry my international cousin I could go to CA and do that and the Feds, who have no explicit position on first-cousin marriage would accept that as a legal marriage. DOMA explicitly states that gay marriages that are legal in the state they are enacted are not seen as valid by the Federal government, and therefore doesn't count for the purposes of immigration.

  • John||

    So what? If the feds decided that marrying your cousin was against policy, it would choose not to recognize your marriage. It can do that. That doesn't make it the right decision. But just because it is wrong doesn't mean it is unconstitutional.

  • Calidissident||

    John, I'm curious as to where you find the federal power to ignore marriages that are legal at the state-level? I do agree that states prohibiting gay marriage is not unconstitutional, though I disagree with it, but I also think the Feds can't pick and choose which state-legal marriages to recognize

  • Way Of The Crane||

    Ironically one of the arguments against gay marriage used by Paul Clement in the DOMA case is,"Because same-sex relationships cannot naturally produce offspring, they do not implicate the State’s interest in responsible procreation and childrearing in the same way that opposite-sex relationships do."

    This is the exact opposite of the argument used to make an exception for the marriage between first cousins in some states. Arizona, Illinois, Indiana, Utah, and Wisconsin all allow first cousins to get married if both husband and wife are over the age of 65 or one of them is proven to be sterile.

  • Proprietist||

    Thanks for defeating your own argument for me. Throughout the Middle East, first cousins have been getting married forever. We don't prevent the spouse from immigrating simply because they are cousins, even though there are some states where it is illegal for first cousins to be married.

    But in Belgium, it is legal for gays to marry, yet the federal government DOES block the spouse from immigrating, despite the fact that their marriage is legal in some states.

  • John||

    So what. You don't like immigration policy. Join the club. But all you are telling me is that we have bad policy. But since when is bad policy synonymous with "unconstitutional"?

  • Proprietist||

    Since they passed the 14th Amendment.

  • John||

    You mean that was passed when homosexuality was illegal in every state. That amendment? That amendent that you now claim gives gays the right to marry?

    Why do you think it says that when no one who wrote it or interpreted it for 150 years thought it means that beyond "fuck you I want it this way"

    You want gay marriage proprietist, great. Get the states to make it so. But please refrain from raping the Constitution to get your way.

  • Proprietist||

    So, the First Amendment does not apply to speech on television because they did not have televisions back in 1776? Slaves were not afforded freedoms of speech back in 1776. The second amendment does not apply to machine guns because they didn't exist in 1776?

  • Proprietist||

    And really John? Expanding individual liberties, freedom of contract and equal protections via the 9th, 10th and 14th Amendments is "raping the Constititution"? Such hyperbole from a statist such as yourself.

  • Calidissident||

    John, how are those laws constitutional? The burdens on you to prove it. And I'm not even talking about the gay aspect of it. "Immigration" is not synonymous with "naturalization" as much as you want it to be

  • Calidissident||

    John, how are those laws constitutional? The burdens on you to prove it. And I'm not even talking about the gay aspect of it. "Immigration" is not synonymous with "naturalization" as much as you want it to be

  • DJK||

    The burden is now on the group trying to prove constitutionality? I'm pretty sure that a significant amount of case law says otherwise. If you haven't noticed, SCOTUS believes in extreme deference to Congress...

  • Calidissident||

    DJK, I'm obviously speaking about what should be/how it was supposed to be. I don't give a shit about case law. The Supreme Court's deference has allowed the feds to get away with the 95+% of their current actions that are unconstitutional

  • Way Of The Crane||

    Married cousins may be allowed to immigrate into the country, that does not mean that every state in this country recognizes their marriage. Out of state marriages between first cousins are considered void in Arizona.

  • Juice||

    Immigration is up to the feds.

    Show me where in the constitution the federal government is charged with the duty of enforcing immigration policy.

    By the way naturalization is not immigration.

  • John||

    Federalism is great whenever the federal government is preventing states from expanding individual liberty, not great when the states are violating individual rights and failing to provide equal protections.

    Which is just another way of saying it is great as long as you get your way or fuck you that is why.

    And gays having the government recognize their marriage is a "right" why? No one even thought of it until the 1980s. If gay marriage becomes a right that courts force states to accept rather the a policy decision legislatures make, we can further kiss the Constitution goodbye. If a bunch of judges and elites can dream up the right to gay marriage in the equal protection clause, they can dream up any other right the progs have been dreaming of. And don't give me the spiel about gay marriage not being a positive right.

    First, since people like employers and such have to recognize all government sanctioned marriages, I think it is a positive. Second, even if it is not, future courts won't care and look at this as precedent for inserting whatever the top men think ought to be in the document.

  • sarcasmic||

    Which is just another way of saying it is great as long as you get your way or fuck you that is why.

    Funny how some "libertarians" take on the attitude of progressive liberals on certain subjects, isn't it?

  • Proprietist||

    Funny how some "libertarians" take on the attitude of segregationists and are cool with violations of individual rights as long as they are done at the state level, isn't it?

  • ||

    It's more accurately a violation of equal protection under the law. I'm not sure, does that count as an individual right, or is it more an aspect of governmental structure?

  • Proprietist||

    In the case of gay marriage, yeah. I mean, I think equal protections is an individual right as well. But I was criticizing the concept of federalism as a good in and of itself in other areas where federalists believe "states' rights" trump individual rights, equal protections, etc.

  • Proprietist||

    Really? I shouldn't be surprised. I'm a LIBERTARIAN and not a federalist. The two are not intrisically intertwined and often contradictory. I will prefer whichever level of government is willing to expand individual rights more. States are not always that level.

  • John||

    So you think it is okay for courts to pull "rights" out of their asses because they like it that way? Good luck with that.

  • Proprietist||

    I support a very broad reading of the Ninth Amendment, and incorporate that reading back to the states via the Fourteenth. I also believe that the discretion granted by the Tenth Amendment mostly falls "to the People."

  • John||

    I also believe that the discretion granted by the Tenth Amendment mostly falls "to the People."

    No you don't. You only think that when the people do what you like. The people of California decided they don't want government recognized gay marriage. And you are telling them to go fuck themselves they no longer get to decide what marriage is, you and people like you do.

  • Proprietist||

    The people of California Alabama decided they don't want government recognized gay marriage independence and equal protection for blacks. And you are telling them to go fuck themselves they no longer get to decide what marriage labor is, you and people like you do.

  • John||

    Gee Proprietsist the fact that the 14th Amendment was PASSED to address that very problem is pretty strong evidence that equal protection means the government can't discriminate based on race.

    Wow, we should look at the history of the amendment and what it means rather than just pulling what we hope it means out of our ass. What a concept.

    That is a sorry effort there son. I expected better.

  • Proprietist||

    Oh, so the 14th Amendment only applies towards slavery, and not anything else?

  • DJK||

    The legislative history of the 14th Amendment makes it pretty clear that race was not the only thing on the drafters' minds...

  • Zeb||

    "So you think it is okay for courts to pull "rights" out of their asses because they like it that way? "

    Well, that's what they already do, so might as well celebrate it when it's actually a win for freedom and equality under the law.

  • John||

    Sure Zeb. But don't piss down my leg and tell me its raining. Just admit that Libertarians don't give a shit about the Constitution anymore than the Liberals do. And I will duly note that admission the next time Libertarians are whining about the war power and such.

  • Zeb||

    I can only speak for myself, not libertarians in general. I'm kind of torn on the issue. I think that if the Constitution were followed to the letter, it would be a pretty decent system of government. But as it is not (and as no one can agree on what exactly that would mean), I have to be a little happy when courts stretch it in a direction that I like. They have sure done it enough in the other direction.

    The Constitution is a tool. I think it is a pretty good one. But if it stops doing what you want it to do, then you have to consider trying something else.

  • Juice||

    But don't piss down my leg and tell me its raining. Just admit that Libertarians don't give a shit about the Constitution anymore than the Liberals do.

    I know I don't. (Unless it helps freedom.)

  • John||

    I'm a LIBERTARIAN and not a believer in the rule of law.

    Fixed it for you.

  • Proprietist||

    I don't believe in the rule of law when the laws are arbitrary, corrupt and violate individual rights.

  • John||

    You don't believe in laws that you don't like. Well isn't that special.

  • Proprietist||

    Channeling your inner Tony today, are we, John? Shouldn't surprise me, but he makes the same exact argument all the time.

  • Proprietist||

    And equal legal protection by the courts and the federal bureaucracies IS an individual right. The government is not permitted to discriminate on the basis of sex (which is why male-only selective service is also unconstitutional.) Anti-gay marriage laws are discrimination on the basis of sex, is it not?

  • John||

    Not anymore than preventing polyamy or any of the other things states have done since the founding of the country is.

    No one intended the 14th Amendment to cover gay marriage. You are only claiming it does because you have decided you like it that way. And that is great right up until someone claims welfare or the right not to be offended is there too. And you and the rest of the Libertarians who are buying this bullshit will not have a single bit of moral credibility to oppose them.

  • Proprietist||

    Now you're just being disingenous, Red Tony. I should expect it, it's just that you sometimes come across as so reasonable I forget how you truly can be at times.

  • Zeb||

    No one intended the 14th Amendment to cover gay marriage

    Sometimes constitutional amendments can have unintended consequences.

  • Way Of The Crane||

    Anti-gay marriage laws are discrimination on the basis of sex, is it not?

    Gay women have the same level of rights as gay men when it comes to getting married. That is, both gay women and gay men are free to marry members of the opposite sex.

    This is why the sexual discrimination argument doesn't work from a legal standpoint. It is also why conservatives fear the slippery slope of "redefining marriage." if you can marry anyone you want, then what's to stop you from marrying multiple people, animals, etc.

    I think the real problem is that the government is involved in the matter of marriage in the first place.

  • Proprietist||

    We agree that government shouldn't be involved, but that doesn't mean a state-privileged contract between a man and woman that requires consummation and shared residency for spousal immigration is not arbitrarily discriminatory against those who do not want to consummate or live with the opposite gender.

  • DJK||

    Nope. Doesn't work this way. Imagine a man and a woman who are exactly equal in every condition except for their sex. The woman has a right to marry a man and receive federal benefits for it. The man doesn't. Government benefits based on sex. Sex discrimination.

  • Death Rock and Skull||

    As long as wherever the fuck I chose to reside is as libertarian as possible, I do not give a fuck how it comes about. I am also totally in support of imposing libertarianism on places where other people live. Fuck statists.

  • John||

    Well death, if you plan to put your boot on their neck, you can't really bitch when they do the same to you.

  • Proprietist||

    Nobody is "planning to put our boot on their neck". We are telling them to get their boots off someone else's neck.

  • John||

    And since when is the right to get government permission to live together being a "nonstatist"?

  • Proprietist||

    I heartily support illegal immigration for gay married couples until they correct federal immigration law.

  • Death Rock and Skull||

    Someone is going to have to put a boot on someone's neck eventually around here.

  • ||

    Yes John, saying some state definitions of marriage are illegitimate is "putting a boot on their neck". Geez.

  • Zeb||

    Has Reason stated a position that bans on gay marriage are unconstitutional? If so, I've missed it.

  • sarcasmic||

    I wonder if the same reasoning will apply regarding the conflict between federal and state marijuana laws.

  • Juice||

    Too late.

  • Anonymous Coward||

    Yay! An abortion topic, a hemp topic, and a gay marriage topic! Must have been a kick-ass cocktail party this weekend!

  • Eduard van Haalen||

    There's free hemp at the gay wedding reception at the Woman's Health Center!

  • Zeb||

    Is hemp in any way controversial here?

  • Way Of The Crane||

    only when used in late term abortions

  • Death Rock and Skull||

    All of them will completely disregard any constitutional argument in favor of making the most vague determination possible that allows the government to do almost whatever the fuck it wants to do.

  • Proprietist||

    John, Tony and their ilk love the negative 9th Amendment: "The enumeration in the Constitution, of certain rights, shall be construed, on the basis of current popular opinion and in however invasive fashion deemed necessary to protect the rule of arbitrary law, to deny or disparage others claimed by the people."

  • John||

    So says the guy who thinks it recognizes a 'right' that is nothing but fashionable thinking. Projection is so strong.

  • Proprietist||

    That's what they once said about miscegenation too, I'm sure.

  • ZinxMinx||

    Sometimes man, you jsut have to roll with it. Wow.

    www.AnonProx.da.bz

  • I GOT HUNG UP SILLY||

    Religious Americans obviously now need to have the same type of keen legal minds who defended the Amish Community from the outside USA community.

    Who is protecting future rights of various straight Religious American families who will be forced into future USA Family Courts across the USA with the Same SEx MarriageGay Judges deciding straight family values ?

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