New York Times Writer Fails Federalism 101

During last month's Supreme Court oral argument over the fate of the Defense of Marriage Act, Justice Anthony Kennedy suggested his willingness to vote against the law on federalism grounds, thereby providing a likely fifth vote against DOMA and a major win for the gay rights movement.

So why is liberal legal columnist Linda Greenhouse of The New York Times so disappointed? Because, she writes, "what reverberated from the bench was the discordant music of federalism – the federalism that almost sank the Affordable Care Act." Here's Greenhouse writing in a recent column:

Ever since last week's frustrating Supreme Court argument in the Defense of Marriage Act case, I've been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?…

[S]triking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture.

I'm not sure Greenhouse entirely understands how federalism works in this case. The federalist argument against DOMA is that Congress lacks any enumerated power under the Constitution to enact this particular piece of legislation. If the Supreme Court agrees with that argument, then the overreaching federal law must fall. That's it. End of story.

Whether or not the states should be left "to their own devices" on gay marriage is a totally separate issue hinging on a totally separate constitutional question: Does the Equal Protection Clause of the 14th Amendment prevent the states from banning gay marriage? If the answer to that question is yes, then the federal courts have an obligation to strike down those bans.

Put simply, a federalist ruling against DOMA says nothing about the constitutionality of state laws precisely because DOMA is not a state law, it's a federal one. It's not that complicated.

Comments

[Fist of Etiquette]

I'm guessing she was hoping to use the power of the federal government to force same-sex marriage recognition on the several states. Supreme Court federalism ruins this plan.

[Rock Action]

In all seriousness, won't that happen under Equal Protection, too? The 14th would be using the power of the federal government to do the same.

[John]

Sure they could. But to do so would mean torturing the Amendment to make a right out of an activity that was pretty much illegal at the time of its drafting. That is what Greenhouse wants. She wants to the court to kill DOMA because there is a right to gay marriage in the constitution further enshrining the idea that the Constitution means whatever the fuck our betters say it does.

[Rock Action]

From what I've been reading here, this is exactly what the Constitution means.

[John]

They would like to think it means that. But it is hard to see how it does unless you embrace the idea that its meaning changes over time subject to the whims of popular and elite opinion. Good luck with that.

[Rock Action]

Wickard

[John]

And that has worked out so well.

[Rock Action]

Smashingly.

[Hopfiend]

I guess the question then becomes whether homosexuality is merely a behavior or an immutable characteristic, and discrimination against homosexuals is therefore unlawful.

[Rock Action]

Or they could make sexual orientation a quasi-suspect class like CT did, which I doubt they will.

[Francisco d Anconia]

In all seriousness, won't that happen under Equal Protection, too? The 14th would be using the power of the federal government to do the same.

Federal government has no enumerated power to control marriage. It is therefore a state or people issue under 10A. STOP

14A says no state may make a law to deny any person within its jurisdiction the equal protection of the laws. Therefor, gays have the same rights as straights already and any law passed to deny them that right is unconstitutional. STOP

Remember the clause in 10A (bold): 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.

14A specifically prohibits the states from not enforcing laws equally.

It's not an issue of the feds forcing gay marriage on people. They already have that right and certain states are unconstitutionally inhibiting it. It is the proper role of the feds to defend the rights of the individual. I don't have a problem with any of it.

[Rock Action]

14A specifically prohibits the states from not enforcing laws equally.

Right. And if they were to say that the a state that didn't account for gay marriage wasn't applying their marriage laws equally, then you'd have a national federal enforcement scheme.

[Francisco d Anconia]

then you'd have a national federal enforcement scheme.

We do, and should, have a federal enforcement scheme. Enforcing the constitution is a legitimate function of the federal government. And doing so through the courts is exactly the right way to proceed.

[Rock Action]

Of gay marriage. This is full of declaratives and I'm not sure if getting into a legislative/judicial argument is going to get us anywhere.

[Francisco d Anconia]

Of gay marriage.

No of the 14A.

[Rock Action]

Assuming it applies to gay marriage. But like I said, you obviously are convinced it does, so I'm not sure where the debate is going but the aforementioned question begging.

[John]

That is complete question begging. The equal protection clause does not mean the states can never discriminate on the basis of anything.

For example, you could take your statement an rephrase it as

14A says no state may make a law to deny any person within its jurisdiction the equal protection of the laws. Therefore, people who cant pass the driver's test have the same rights as those who do and any law passed to deny them that right to drive is unconstitutional. STOP

Or you could put in admissions to state colleges or welfare or virtually anything else that the state makes distinctions under the law. It is not that the states can't make distinctions. It is that they cannot make distinctions based on certain criteria, the best example being race.

The whole issue is whether homosexuality is one of those criteria. You think it is. The people wrote the Amendment didn't agree with you.

[DesigNate]

Your counterexample is pretty stupid John.

The correct way to frame that would be: 14A says no state may make a law to deny any person within its jurisdiction the equal protection of the laws. Therefore, anyone who wants to drive should be able to get a license. Stopping gays from getting a license would therefore be unconstitutional. STOP

Failing the test is not the same as not being able to take the test in the first place.

[John]

Everyone gets a shot at marriage. You just have to marry someone of the same sex. Your point only makes sense if gays were banned from marriage altogether. They are not. They just have to engage in a marriage the state likes. Same way, you have to pass a test if you want to get a driver's license or not make too much money if you want welfare.

Both distinctions, passing a test, marrying someone of the opposite sex, are objective tests that anyone could meet if they chose to.

[Francisco d Anconia]

Everyone gets a shot at marriage. You just have to marry someone of the same sex.

14A:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Defining marriage as between a man and woman IS the part that violates 14A.

[John]

Defining marriage as between a man and woman IS the part that violates 14A.

How can you possibly say that when it was defined as exactly that at the time the Amendment was passed? And it was defined as that all the way up until the now really depending on who you talk to.

You are arguing that a definition that was in force at the time of the writing of the Amendment and remained in force for the entire history of the amendment is now in violation of that Amendment. Why? I see no other reason than it is because you want it to be that way. Well the people of California and the Congress decided it wasn't that way. Why do their views and the views of the people who wrote the Amendment not count?

Again, you are just question begging.

[DesigNate]

It is my understanding (possibly incorrectly) that DOMA sets it up so that states like Texas don't even have to recognize gay marriages done in states like New Hampshire.

If that is true, then it does fuck with equal protection since Texas would recognize a straight marriage performed in New Hampshire, but not the gay one.

[Francisco d Anconia]

You are arguing that a definition that was in force at the time of the writing of the Amendment and remained in force for the entire history of the amendment is now in violation of that Amendment.

What "amendment" are you talking about in the above paragraph? DOMA defined marriage in 1996. 14A ratified in 1868. 10A in 1791. What are you talking about?

Are you actually arguing that the federal government couldn't/wouldn't pass a law that's unconstitutional and or such a law might not be challenged for years?

DOMA- unconstitutional under 10A

States defining marriage as between a man and a woman- unconstitutional under 14A.

[Smilin' Joe Fission]

Or another way to put it is that both gay and straight people are already equally protected under the law since it is just as illegal for a straight person to marry a member of the same sex as it is for a gay person.

[Calidissident]

"Or another way to put it is that both gay and straight people are already equally protected under the law since it is just as illegal for a straight person to marry a member of the same sex as it is for a gay person."

This is like saying "People who want to marry people of other races are already equally protected. They can marry someone of the same race the same as everyone else." Gay people, by definition, are not interested in marrying someone of the opposite gender. That said, I do agree with John that the intent of the 14th amendment was not to apply to gays, as much as I think it should

[Francisco d Anconia]

That said, I do agree with John that the intent of the 14th amendment was not to apply to gays, as much as I think it should

I don't see anything in 14A that talks about a specific group unless that group is "citizens". Are homosexuals not citizens?

[Calidissident]

FDA, I agree with you on what the words seem to say, but I think we have to go to the intent behind the words. Otherwise, phrases like "general welfare" could legitimately be abused. What I meant was that the equal protection clause was not meant to apply to sexual orientation. There's no evidence it was, although I think it should

[Francisco d Anconia]

I got ya Cali. But think of it this way.

We all know they meant blacks, right? Dred Scott...all that.

Why didn't they say blacks? Because they meant EVERYBODY. They knew if they didn't include everybody something similar (gays marriage) would rear its ugly head and if they limited equal protection under the law to blacks, people like John would claim the law could discriminate against anyone not exempted in the amendment. Hence, the word citizen.

It means exactly what it says, REGARDLESS of the circumstances that generated it.

[DesigNate]

Not being banned from a marriage I don't want to enter is about as useful as not being banned from buying a car I don't want.

[John]

Again, you don't like the distinction. I get that. Well I don't like driver's tests.

But not liking a distinction or a distinction being really stupid, doesn't make it unconstitutional.

[jesse.in.mb]

I do so like when people who are married to the person of their choice feel like they can make that decision for others. Options for thee but not for me.

I do agree with John that the intent of the 14th amendment was not to apply to gays, as much as I think it should

I don't think the writers of the 14th would have had gay marriage in mind, but I'm not sure that's really an issue. I seriously doubt that the authors of the 4th would've had cloud storage, email inboxes and GPS tracking devices in mind, but that doesn't mean I think the gov should have unfettered access to those things just because they aren't technically on my person, in my house or made of paper.

[John]

It doesn't matter whether they had it in mind. Homosexuality was a crime in 1865. So whatever they had in mind, it couldn't have been an equal protection with regard to gay marriage.

There is nothing in the 14th Amendment that says you can't have gay marriage. You guys are the ones who are arguing that it guarantees gay marriage. So yeah, it is up to you to give some kind of a case that the drafters meant that but somehow didn't mean polygamy. We know they didn't mean polygamy because polygamy was an issue in the 19th Century and they didn't have any problem with states prohibiting it.

So if they didn't intend to protect polygamy, how could they have possibly intended to protect gay marriage? The bottom line is you guys want gay marriage but don't want to be bothered with winning and election so you expect the Courts to save you. Good for you. But please stop calling yourself any sort of strict constructionists or claiming to have any principles beyond "fuck you that is why" or just call yourself liberals for short.

[Francisco d Anconia]

Christ you are obtuse.

I'm the one arguing what the constitution says. You are telling me it doesn't mean what it says.

14A clearly says states cannot have one set of laws for one group of citizens and another set of laws for another.

READ IT!

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[Francisco d Anconia]

Would you be okay if they defined marriage as between a white man and a white woman? Is THAT constitutional?

If you answer in the negative, which you must, you must concede that defining it as between a man and a woman is also unconstitutional.

[mtphrs]

The two situations are not the same. Consider a law that prohibits interracial marriage. A white man may marry a white woman, but a black man may not. The law discriminates based on race, which, under these circumstances (and essentially all circumstances) is unconstitutional.

Now consider a law that prohibits same-sex marriage. A heterosexual man may marry a heterosexual woman or a homosexual woman; a homosexual man may marry a heterosexual woman or a homosexual woman. The law does not discriminate on the basis of sexual orientation. On the other hand, it does discriminate on the basis of gender. A man (homosexual or heterosexual) may marry a woman, but a woman (heterosexual or homosexual) may not. The real question, then, is whether the discrimination on the basis of gender violates the Constitution's guarantee of equal protection.

To go further, consider what would happen if it were held that the Constitution prohibits discrimination in marriage on the basis of sexual orientation and that same-sex marriage must be recognized (as I've just shown, the two are not identical propositions). Then, not only would a homosexual man be able to marry another homosexual man, but two heterosexual men would likewise have to be able to marry one another--and there are plenty of tax and other reasons for two heterosexual individuals to do so.

[DesigNate]

Using your analogy, being able to get a driver's license shouldn't be left up to popular vote.

[John]

Or to put it another way, your statement can be rewritten with regard to polygamy or people who want to marry their cousins or animals or anything else. The whole issue is can you make the distinction in marriage regarding homosexuality. You think that is wonderful. I get that. But change the constitution. Please do not assist the liberals in raping it again to find a new "right".

[Francisco d Anconia]

Or to put it another way, your statement can be rewritten with regard to polygamy or people who want to marry their cousins or animals or anything else.

And why would you care who consenting adults choose to marry? WHo fucking cares if a girl wants two husbands? How does it affect you?

[John]

And why would you care who consenting adults choose to marry? WHo fucking cares if a girl wants two husbands? How does it affect you?

It doesn't matter what I think about it. I could love it. But just because something is objectively good or bad doesn't make it protected under the Constitution.

Libertarians are just torturing the Constitution to get their pony just like liberals who think that welfare or education are rights are trying to get theirs.

[Calidissident]

"Libertarians are just torturing the Constitution to get their pony just like liberals who think that welfare or education are rights are trying to get theirs."

And conservatives?

[John]

Sure Calidissident. They do the same on things like the general welfare clause or the war powers. And Libertarians call them on it. Libertarians are strict constructionists right up until we get to gay marriage. Then they throw all of their principles overboard.

[Juice]

Federal government has no enumerated power to control marriage. It is therefore a state or people issue under 10A. STOP

But it does have an enumerated power to regulate how the states honor each other's contracts. Read Article IV Section 1.

[AlmightyJB]

"I'm guessing she was hoping to use the power of the federal government to force same-sex marriage recognition on the several states."

That's exactly right. She doesn't think states should have any rights. They should have to do whatever the feds tells them. She knows that gay marraige is winning at a national level so when that happens she doesn't want any states to be be able to use federalist arguments to skirt any federal legislation. Not that that even matters that much since all states our firmly attached to the federal tit. Their like crack whores that will do what they're told because they need their next fix.

[Raven Nation]

Close. But I think the mindset is neither states nor people have any rights that derive from nature (or God or whatever). Everyone has rights which are given to them by the state. Thus when good people (who think like Greenhouse) are in charge the people's "rights" will be protected.

I don't "preach" a lot in my classes but I spend about 10 minutes beating my students over the head to emphasize that they possess rights b/c they are human not b/c the government gives them rights. It really is scary just how many of them "know" that the government gives them rights.

[mad libertarian guy]

You need to emphasize the difference between the government GIVING or GRANTING rights, and the government RECOGNIZING them.

The Bills of Rights is an official RECOGNITION by the government that each INDIVIDUAL has rights, and a contract stating that they will not interfere with them.

Once I used the correct terms, I could more easily split that hair for my students.

[Raven Nation]

I like the wording. This is the distinction I emphasize although your wording may prove to be more effective. I also point out to them the wording, especially, of the Bill of Rights.

So, for example, the 15th Amendment does not grant the right to vote to African-Americans, it declares that the government can not prevent people voting based on race.

And, of course, the BOR starts with that great phrase, "Congress shall make no law..."

[robc]

States have powers, not rights.

But I know what you mean.

[PapayaSF]

Progressives are only fine with federalism when individual states want to do something more left-wing than the federal government.

[Ken Shultz]

Even then, I have doubts.

The people who want to ban Big Gulps--for your own good--aren't the same people who want to let Coloradans buy recreational marijuana at a retail store.

I think there's some confusion among liberals about the differences between them and their progressive cousins. The liberals think anybody that's against fundamentalists, wars, and capitalism means they're all on the same side--but it just ain't so.

In addition to being the enemies of federalism, progressives see rights as their enemy, too. I don't think liberals are like that. Liberals care about things like the First Amendment, but progressives see the First Amendment as the enemy--if it gets in the way of one of their pet issues.

[DaveAnthony]

Of course they aren't! They are going to need all those big gulps to cure the widespread cotton mouth that will be afflicting all these recreational users.

[Ken Shultz]

Prop 8 is especially worrisome for progressives because it was direct democracy (a very progressive thing) going against one of the progressive's pet issues.

If you talk to people in San Francisco, they still haven't come to terms with the fact that their fellow Californians voted against gay marriage.

Typically, they blame it on Mormons spending money in the state to support Prop 8--like they blame the Koch Brothers for people getting mad about TARP.

There's an important psychological component to being a real progressive: you have to believe that everybody else wants what you want--and if they don't?

The First Rule of Progressive Club is: The people want what the progressives want.

If the people don't want what the progressives want, then refer to the First Rule of Progressive Club again.

This is why progressives can talk so much about freedom, out of one side of their mouths, and, out of the other, advocate using the government to force compliance--without batting an eye! They truly believe in their heart of hearts that the people really want to do what the progressives would force them to do.

[Death Rock and Skull]

I don't want the federal government or the states to have rights. I want individuals to have rights, and a constitution that only grants governments a very limited set of powers.

[DaveAnthony]

"Also, in a rare double-whammy decision the court finds polygamy constitutional."

[John]

Linda Greenhouse exists so that Dalia Lithwick has someone next to whom she can look intelligent.

[Drake]

Oh no! Not the federalism that almost sank the "Affordable" Care Act!

[Ken Shultz]

She writes, "what reverberated from the bench was the discordant music of federalism ? the federalism that almost sank the Affordable Care Act."

Federalism almost got in the way of ObamaCare.

Federalism doesn't make gay marriage the law of land nationally.

Overturning Roe v. Wade would let the states decide on abortion.

Federalism is the enemy.

QED

[sarcasmic]

I love that phrase "to their own devices" as if the most terrible thing in the world is for people to operate without some authority micromanaging their every move.

[$park?]

Well, our wise masters do know what's best for us. I'm sure they're just trying to help.

[PS]

Yes, that really does sum up the mindset, doesn't it?

[Ken Shultz]

To progressives, pet issues trump everything.

They don't care about rights, the Constitution, federalism, or anything else so much as they care about pushing one of their pet issues--against all resistance.

Just like with every other cult, if you're not for them, you're against them.

[Another David]

Isn't the idea that there's an Equal Protection argument against DOMA as well, and if the court won't apply it there, it almost certainly won't use that standard to strike down gay marriage bans either?

[Loki]

Not necessarily. The federalism argument against DOMA essentially gives the court a way to strike down DOMA without having to decide right now on the equal protection merits of gay marriage in general, which I see as a pretty smart argument for the DOMA opponents to make since it absolves the court of any responsibility for making a decision about gay marriage in general right now.

The nazgul might not want to make a sweeping ruling on gay marriage right now. The problem lefties like Greenhouse have with that is that they don't want incremental victories, they want the whole pie and they want it right now!

[mad libertarian guy]

The problem lefties like Greenhouse have with that is that they don't want incremental victories, they want the whole pie and they want it right now!

To be fair, this is a major problem with libertarians as well. There are many who don't view incremental steps towards more freedom as acceptable.

See the various libertarians denouncing Rand Paul (or Ron before him), or the infighting that we had here at HnR on the differences between Ron Paul and Gary Johnson during the run-up to last year's election.

[Doctor Whom]

Put simply, a federalist ruling against DOMA says nothing about the constitutionality of state laws precisely because DOMA is not a state law, it's a federal one.

Thank you. That's a point that I've been trying to get across for a while.

[[e-mail]]

It's standing, not federalism, that will kill the Prop 8 challenge.

[Rock Action]

How so? Not familiar with this.

[Rock Action]

Sorry. Just looked it up on Slate.

[Mickey Rat]

Because, otherwise, the argument against Prop * has no merit, apparently.

[Fool]

Statists ought to love federalism. More governments to deal with!

[Ken Shultz]

One ring to rule them all...

[Fatty Bolger]

They prefer the One Government to rule them all. That way everybody has to do what they say. No escape.

[Pro Libertate]

And, of course, one-stop bribery and influence-peddling. Besides, the GOP dominates many of the states.

[The Late P Brooks]

A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture.

This roughly equivalent to saying, "If everybody can't have gum, nobody can have it."

Right?

[Suthenboy]

Lefty doesnt get it. Imagine that.

She probably does get it, but that wouldnt allow her the logical/legal gymnastics required to get whatever result she desires in every situation, so she barfs up some mendacious bullshit hoping everyone will buy it.

Listening to the left make arguments always reminds me of a spoiled child rationalizing to it's parents why it should have whatever it wants.

[Loki]

New York Times Writer Fails

You could have just stopped there.

[John]

Notice how it is no longer Obamacare but the "affordable health care act". What Linda, you don't want to give Obama credit for his greatest achievement? Racist!!

[Ken Shultz]

As healthcare continues to become increasingly unaffordable--because of ObamaCare--I'm starting to wonder if calling it the "Affordable Care Act" might be even worse for the progressives who championed it.

It makes them look especially ridiculous.

[NoVAHockey]

MedPAC insists on calling it PEE-PAC-ah.
everyone i know just says A-C-A

[Ken Shultz]

Yeah, they don't like what they called it to get passed.

But Obama's not going to be around forever, and he's not running in the next election.

Maybe we should start calling it the Unaffordable Care Act or something.

[mad libertarian guy]

They will just move the goal posts and claim that it wasn't designed to make health care affordable, but to make it available to the poor.

[Somalian Road Corporation]

Yeah, I can totally see this coming.

[Death Rock and Skull]

They feel that calling it by its official name legitimatizes it.

[Ken Shultz]

Well, they didn't like calling it ObamaCare before the last election because they thought it might hurt Obama's reelection chances.

Once he becomes a lame duck, they'll start calling it something as innocuous as possible. Unfortunately for them, it's official title isn't innocuous.

It makes them look like idiots.

[Thane of Whiterun]

Wholly unsurprisingly, she doesn't seem to comprehend that a justice can -- and, at least in theory, should -- rule based on what the law actually is and not on what the effect of the ruling may be.

[Ken Shultz]

"a justice can -- and, at least in theory, should -- rule based on what the law actually is and not on what the effect of the ruling may be."

That's crazy talk!

[sarcasmic]

Of course not. Everyone knows that you make your decision based upon emotion, then reverse engineer the rationale.

[Death Rock and Skull]

The supreme court's citation of federalism is confusing, since they justify almost everything by the commerce clause and could have easily done so with this. Its almost like they arbitrarily apply the commerce clause to things they pick and choose. Fuck, we need a better constitution.

[Xlotl]

The only tiny speck of a bright side to the Obamacare decision was that they didn't find it permissible under the Commerce Clause. I think there are 5 votes on the Court for making the Commerce Clause something less than infinitely elastic.

[Mickey Rat]

Except that, of the majority, that only applies to Roberts which makes dubious precedent.

[John]

No we need a better court. And we need a populace that understands the Constitution was written to restrain government not give them a fucking pony every time the electoral process doesn't.

[DesigNate]

The electoral process can't subvert your rights.

And saying that I can only marry a woman and so can jesse hence equal is fucking retarded.

[Mickey Rat]

Saying that man+man = woman+woman = woman+man is not retarded, how?

[ChrisN]

Some more of that Greenhouse gas. Keeps everybody warm.

[OldmanRick]

Since marriage is a legal contract between two individuals, what would happen if a couple from a gay marriage state moved to a not so accommodating state and if after relocating one died with property held jointly by both in both each state? Would the commerce clause become relevant since borders were crossed?

[DesigNate]

DOMA basically says the states don't have to recognize gay marriages performed in other states. So the joint property becomes the .gov's or the dead persons family's.