Last week I criticized a column by New York Times legal pundit Linda Greenhouse which argued that "the campaign for marriage equality would be worse off" if the Supreme Court voided the Defense of Marriage Act on federalism grounds. "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," Greenhouse asserted, dubbing the federalist case against DOMA a conservative "Trojan Horse" designed to outlaw gay marriage at the state level.
I'm happy to report I am not alone in finding fault with Greenhouse's work. At the blog of the liberal American Constitution Society, two prominent lawyers involved in "the campaign for marriage equality" have rejected Greenhouse's dubious assertions and endorsed a federalist argument against DOMA. As Mary Bonauto, the Civil Rights Project Director for the group Gay & Lesbian Advocates & Defenders, and Paul Smith, the Washington lawyer who argued and won the 2003 Supreme Court case Lawrence v. Texas, observe:
The primary concern [Greenhouse] expressed was that a decision invalidating DOMA on federalism grounds would, by emphasizing the primacy of states in setting marriage policy, somehow immunize from constitutional challenge those states that have chosen not to extend marriage rights to same-sex couples. But this concern reflects a mixing of constitutional apples and oranges.
The federalism concerns raised by DOMA have to do with the power of Congress. It is Congress that chose in 1996 to exclude only same-sex couples married under state law from the otherwise capacious category of state law "marriages" recognized under federal law. It expressly did so in part to undercut potential state choices in favor of marriage equality. When that law is challenged as discriminating against gay couples, the fact that Congress has no general power to marry people is properly weighed in the balance when lawyers try to come up with substantial justifications for what Congress did….
Whatever one's political inclinations, it is not possible to find another example of federal legislation that comes anywhere close to DOMA. And that understanding leads to the last and perhaps most important lesson that federalism teaches in this case. When the federal government acts in a way that not only is unprecedented, but also violates some of the basic principles of federalism, courts enforcing the equal protection guarantee have good reason to search more carefully for the government's real motives.
Read more about the federalist case against DOMA here.