Antonin Scalia

Justice Kennedy's Federalist Feint

The fuzzy logic of the Supreme Court's ruling against the Defense of Marriage Act


I agree with the Supreme Court that the federal government should recognize state-approved gay marriages. But I am not persuaded by the Court's rationale for concluding that such a policy is constitutionally required. In fact, I'm not sure what its rationale is. 

For supporters of gay marriage (most of us, according to recent polls), the fuzziness of the Court's reasoning can be seen as an advantage, since it opens the door to requiring state as well as federal recognition of same-sex unions. But if and when the Court takes that step, the lack of a clear and convincing constitutional argument will invite discord and disrespect. 

The strongest argument against Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for all federal purposes as a union between a man and a woman, is that it improperly interferes with state regulation of domestic relations. When it passed DOMA, Congress explicitly sought to uphold a traditional view of marriage and implicitly sought to deter states from recognizing gay unions. 

In his majority opinion, Justice Anthony Kennedy initially seems to be making such a federalist argument, emphasizing that domestic law has always been the domain of the states. But after building that argument for seven pages, he suddenly veers away, saying "it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance." 

If he had stuck with federalism, Kennedy might have alienated the four left-leaning justices who joined his opinion: Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. The five of them still could have concurred in the result while disagreeing on the reasoning, but perhaps Kennedy wanted to avoid the messiness of multiple opinions. 

Or perhaps, as Justice Antonin Scalia suggests in his dissent, Kennedy wanted to set the stage for a future ruling overturning state bans on gay marriage. A federalist argument would not have done that. To the contrary, it would have implied that the issue of gay marriage should be decided by the states without interference by the federal government one way or the other. 

The obvious alternative was the argument that DOMA, by dictating discrimination against gay couples, violated the principle of equal protection, which requires that people who are similarly situated be treated alike. By and large, that is the tack Kennedy seems to prefer, although he also throws in vague references to "the liberty protected by the Due Process Clause." 

Because laws routinely treat different categories of people differently, the Court has developed a three-tier system of analysis that allows most distinctions if there is a "rational basis" for them—a highly deferential test that requires only that a law be rationally related to a legitimate government purpose. At the other extreme is discrimination based on "suspect classes" such as race or national origin, which receives "strict scrutiny," meaning it must be "narrowly tailored" to achieve a "compelling" government interest. 

In between is "intermediate scrutiny" (a.k.a. "heightened scrutiny"), which is used in equal protection cases involving gender and requires that a legal distinction be "substantially related" to an "important governmental objective." The plaintiff in this case, joined by the Justice Department, argued that discrimination based on sexual orientation should be subject to heightened scrutiny. 

Although the appropriate level of scrutiny was an issue throughout the history of this case, Kennedy never addresses it. But since he says the motivation for DOMA amounted to nothing more than "a bare congressional desire to harm a politically unpopular group," he seems to think the law fails the rational-basis test. 

One problem with this description, as Scalia and Justice Samuel Alito note in their dissents, is that it portrays DOMA's supporters—and, by implication, supporters of state bans on gay marriage—as bigots with no rational basis for their position. In a country where at least two-fifths of the population still opposes gay marriage, that may not be a winning message.

NEXT: Brickbat: Have a Coke and a Smile

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  1. Good morning you bunch of degenerate motherfuckers!

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  2. 7:20 AM and no 7:00 Brickbat? Are they going to back-date it again

  3. Correct me if I’m wrong, but a state is considered to have a ban on gay marriage even if all that exists is the plain jane marriage law and not a recently created explicit ban on gay marriage. That just seems odd.

    1. Not really. If the state refuses to recognize the marriage license, then it’s banned. Whether it’s explicit or implicit.

      1. As would be pointed out in the other direction, there is no “ban” in any state.

        Gays can get married without a license in every state.

        Of course, the problem is marriage licensing in general, but that throws some regulars of this site into a tizzy.

        1. the licensing wouldn’t be an issue if the state treated marriages between any consenting adults like contracts wherein the state’s only role would be as mediator if a dispute arises. With this type contract, the state takes the extra step of determining who can and cannot participate, pretty much putting a thumb in the eye of this thing called freedom of association.

          I’m no lawyer so if this is off base, please explain how.

          1. “the licensing wouldn’t be an issue if the state treated marriages between any consenting adults like contracts”

            Then why can’t consenting adults that want to have a contract just draw up their contracts?

            1. because the state has stuck its nose into the matter by determining which adults can and cannot participate. That’s why I said licensing would not be a problem IF the state treated marriages like any other contract that consenting parties voluntarily enter.

              1. And apparently because of that some crazy how those would be considered banned marriages.

            2. Because if anyone challenges in court, the judge will rule that it’s not valid and ignore. It’s the same problem that while you theoretically have the power to write a will leaving your estate to anyone, if you leave most of your possessions to someone who’s not a legally recognized member of your immediate family, the will is likely to be ignored when your family challenges it in court.

            3. Marriage is not banned. Contracts can be entered into by consenting adults. The difference is two-fold.
              First, government recognition of the contract entitles perks or privileges that people desire.
              Second, homosexuals want to be recognized as equal and not a sub-class whose rights are subordinate to a majority.

              1. these days, seems everyone’s rights are subordinate to something.

            4. Even if two consenting adult males tried to make a “contract” that read just like a marriage license it would no carry the additional government benefits for taxes and custody issues (basically what DOMA was restricting at the Fed level)that a state sanctioned marriage contract contains. Now, they could try to define terms of the relationship in their “contract” about what happens to our stuff if A cheats on B etc.

              The biggest issue that would arise (I assume) is that any court in a non-gay marriage state, with their “contract” in front of it, would void the entire contract for trying to be a de facto marriage which the courts refuse to recognize. I also imagine any contractual language trying to define binding duties of love and romance and commitment among the parties would be void for vagueness as well (but maybe some pre-nups have figured this out).

              Tell me if that helps; I know it was long but so was the DOMA opinion.

    2. That which is not explicitly authorized is prohibited, and that which is not recognized by god government does not exist.

  4. It’s argued by gay marriage opponents that the basis for not changing marriage is procreation. Although gay couples can adopt and raise children, they cannot produce them, and since states generally promote procreation, states have a rational basis to allow traditional marriage and not non-traditional ones. No bias against gays is needed if one follows that line of reasoning.

    1. So why not ban ban people who are sterile from getting married?

      1. Some hetero couples cannot procreate.

        All homo couples cannot procreate.

        some != all

        1. Right. But if marriage is about procreation why not ban anyone that can’t procreate from a state sanctioned marriage? I

          1. How do you tell? Do you force hetero couples to undergo expensive fertility testing as a condition of marriage?

            With same sex couples it’s pretty easy to tell that they can’t reproduce. Granted sometimes it’s difficult to discern what sex they actually are, but once you’ve figured that out then it’s fairly easy to tell that they can’t reproduce.

            1. But… BOOOSH!

              1. But… BOOOSH!

                Oh yeah. I forgot. Well, I’ve actually got work to do today.


              2. But… BOOOSH!


            2. “How do you tell? Do you force hetero couples to undergo expensive fertility testing as a condition of marriage?”

              Sure. If it really is an interest of the state to encourage procreation.

          2. Some states do ban marriage between hetero If they have the wrong blood type.

          3. How about elderly couples? How much outrage would there be if the government told a 50 year old man and 55 year old woman they can’t get married because they’re to old to have kids? Even the people making the procreation argument wouldn’t likely bat an eye at an elderly couple getting married.

        2. I’m asking why sterile couples are not treated as non traditional marriages since they can’t make babies.

          1. They are an exception. No same sex couples can reproduce. That’s a rule.

            1. But Jane and sterile Randy are running my trad marriage by not making babies!

              1. *ruining

          2. Historically if a marriage did not produce at least one healthy child, and in some places a healthy male child, it was considered a failure and oftentimes would be dissolved. We think of marriage as a romantic affair but marriage law really comes from a time where it was for economic or social gain, and producing children.

            1. So you mean that as time passes, the definition of marriage changes in order to keep up with the changing nature of society? But that’s unpossible! I keep getting told marriage has always had one unalterable platonic definition!

              1. The changing social structure of marriage is a good reason why it should be left in the realm of the social and not the legal. Civil marriage is by far the newest and most novel iteration of the practice.

            2. Capitalism has changed that forever RightNUt. We no longer use marriage mainly as a vehicle for social gains for society. Marriage is now, due to the fruits of capitalism, an institution for individuals and their preferences. Marriage is mainly all about “love.” Since that is the norm now, it only makes sense that homosexual couples want the same recognition.

              What marriage law was designed for in the past is of little consequence now today.

              I think that is very hard for most DOMA supporters to get over. They are living in the past and have not realized that norms and customs of this culture have changed and will continue to change.

      2. If a hetero couple discover they cannot have children together after marriage, is the marriage contract invalidated?

        1. “is the marriage contract”

          Is there one of these online I can read? Maybe it’s in the section where the “social contract” you’re obligated to when you are born is?

          1. Is there one of these online I can read?

            Here. (Translated from the original Aramaic)

            1. I shall cherish you and honor you as is customary among the daughters of Israel who have cherished and honored their husbands in faithfulness and in integrity.

              So, how does the state determine if someone has broken this stipulation of the “contract”?

              1. States do not regulate contracts between individuals. States arbitrate disputes in the contract between the parties.

                1. and Obamacare regulations determining the requirements for health insurance plans are…?

          2. So marriage isn’t a contract? Why do I have to go to court to dissolve one?

            The fallacious conflation of “marriage contract” and “social contract” is one of the lamest memes ever. Right up there with “Gay can marry the opposite sex, hurr durr.”

            1. So marriage isn’t a contract? Why do I have to go to court to dissolve one?

              The same reason you get thrown in jail if you don’t pay your taxes, hurr durr.

              1. Sorry, I thought I was arguing with an adult. Never mind.

                1. “Sorry, I thought I was arguing with an adult. Never mind.”

                  I asked you if you could show me an example of the terms of this “contract”. I don’t see the answer.

                  1. What is a marriage if not a contract of partnership? Is it mystical in origin?

                    1. What is a marriage if not a contract of partnership? Is it mystical in origin?

                      I think most people repeating their vows in a wedding ceremony would be surprised to know it was a “contract of partnership”, with no explicit terms written in the contract. Did marriage exist before the state started licensing them?

                    2. Did marriage exist before the state started licensing them?

                      What part of “Everything within the state, nothing outside the state, nothing against the state” don’t you understand?

            2. You don’t have to go to court to dissolve one. People go to courts because there are disputes about property and children’s welfare. Anyone can get married and then cancel the marriage without the approval of the state. The fallacy of your line of inquiry lies in your view of contracts being authorized and owned by the state. They are not. The state certifies them, just like a state certifies property rights, births, deaths and contracts called marriage.
              Citizens are free to make contracts they want and terminate those contracts according to the contract or by mutual agreement. The question is why people bring the state into it at all.

              1. Marriage is a somewhat unique case in that the law prescribes certain defaults that you cannot override, even with your own private contract.

                1. Which is a big part of the reason why many libertarians want the state out of the business of licensing it.

    2. how do those opponents square the circle in the cases of hetersexual couples who have kids but are NOT married, whether the parents stay together or not?

      1. I believe they argue that children who’s parents are married do better than those that do not, and that since marriage is harder to dissolve than a more casual relationship, it gives kids a better chance of having a stable family setting.

        I’m certainly no expert on so-cons but from casual conversation with them I’m fairly certain that is how they see it.

        1. and on paper, they may be right. It seems a child would fare better growing up in a stable household with two parents committed to the relationship. However, a lot of those parents are unmarried and that throws socons into a tizzy.

          While there is practical value in that piece of paper – property ownership, inheritance, health decisions, etc – just having it does not magically make the relationship successful. If it did, we would have the sorry divorce rate we have.

          1. the paradox is, if the parents are married and happy, then you don’t need laws making it difficult to get out of the marriage. Those laws only really affect people who are married and unhappy or abusive. So the law has the effect of keeping kids in abusive homes which is far worse than having divorced parents who are good when separated.

            The law of unintended consequences is true of cultural central planning as well as economic central planning.

            1. An epitaph:

              Mrs. Charles Bliss

              Reverend Wiley advised me not to divorce him
              For the sake of the children,
              And Judge Somers advised him the same.
              So we stuck to the end of the path.
              But two of the children thought he was right,
              And two of the children thought I was right.
              And the two who sided with him blamed me,
              And the two who sided with me blamed him,
              And they grieved for the one they sided with.
              And all were torn with the guilt of judging,
              And tortured in soul because they could not admire
              Equally him and me.
              Now every gardener knows that plants grown in cellars
              Or under stones are twisted and yellow and weak.
              And no mother would let her baby suck
              Diseased milk from her breast.
              Yet preachers and judges advise the raising of souls
              Where there is no sunlight, but only twilight,
              No warmth, but only dampness and cold?
              Preachers and judges!

              Edgar Lee Masters

    3. Years ago I had a lesbian friend and her ‘wife’ ask me if I would give them a baby. I declined but only because any child of mine is my child.

      They found someone else.

      1. David Crosby?

  5. I’ll be skipping the links today, so I’m going to put these out here now.

    Youth continues to be wasted on the young.…..iends.html

    Cool architecture.…..award.html

  6. …it portrays DOMA’s supporters?and, by implication, supporters of state bans on gay marriage [recognition]?as bigots with no rational basis for their position.

    I still haven’t heard that the rational basis for the opposition is.

    1. Or, more coherently, what the rational basis for the opposition is.

      1. Queers are yucky. They must be punished. Why is that so mysterious or hard to understand?

    2. I gave one further up the thread.

  7. I’m surprised by Mr. Sullum’s essay. I had thought him closer to a Rothbardian than a Paulian. Libertarians do well to become informed about constitutional history and law, just as an atheist should understand Christianity or Judaism, but we certainly don’t need to accept that it, or its interpreters, should regulate our lives. And then there is the question as to why states should have any power over marriage.

  8. I agree with the Supreme Court that the federal government should recognize state-approved gay marriages. But I am not persuaded by the Court’s rationale for concluding that such a policy is constitutionally required.

    Please indicate the clause giving the federal Congress the power to dictate to the states which marriages are real marriages and which aren’t?

    1. In fairness, the states’ marriage licenses still stand in the states. They were just ignored for federal purposes. Which strikes me more as an Article IV issue than an equal protection one. It’s also worth mentioning that the federal government could easily get by not recognizing any state marriage licenses, sidestepping the issue entirely (although that will never happen now that 99% of everyone’s retirement and old age health coverage is administered by the federal government and strongly tied to marriage status).

  9. Any way you slice this issue you either believe that some “government” is empowered to regulate domestic relations or it isn’t.
    If you believe that government (at any level) has the power to regulate anything a majority of legislators (or initiative supporters) approve, then there is no argument people who believe the opposite (that we have rights that exist outside the reach of government regulation or definition) can make.
    The Supreme Court is just another statist agency given some magical authority. How can our rights depend on ONE person’s opinion? (5/4 decisions are basically the will of one person.)
    I could give a crap about the flawed logic of Kennedy.

    1. SCOTUS doesn’t really answer questions about the scope of government per se, but rather the constitutionality of laws. The constitution, aside from spousal immunity protection, has nothing to say about marriage, and it has historically been left to the states. DOMA should have been overturned, because the federal government accepting one license from the states as valid, but not an identical license with different genders on it, is absurd on its face, and violates the spirit if not the letter of Article IV. The question of whether the state should be allowed to license marriage is one beyond the scope of the decision.

      1. Well, the “scope of government” is precisely what the constitution sets out. My issue with the Court is that it is inherently just another political arm of the state. I don’t doubt they have their legal gymnastics that sound reasonable, but they are political appointees who write “opinions”.
        IMO, the federal government has no authority to regulate or control anything not clearly authorized in the Constitution. As to whether the States can cornhole you at will, even if the Feds aren’t authorized to do so, is one of the problems with society at large.
        The problem in my belief is that the Citizens of the US are so uninformed about the principles and implications of the Constitution that they let statist institutions and ideologues tell treat them like bitches. And the rest of us have little choice but to live with our liberty in constant peril created by the patchwork of “laws” and inconsistencies of logic called government.

        1. Couldn’t agree with you more. I’m one of the “end civil marriage” types. And to the extent default civil marriage rules should exist, they should be the state or local government’s purview, certainly not the federal government’s. I was just pointing out that getting to that level of analysis was beyond the scope of the case. And given the case law that has led to the exponential expansion of the central government’s role and authority, it would almost certainly stand anyway. In a world where taxes are penalties are taxes, and where selling pot, guns or oats exclusively to people in your own town somehow affects interstate commerce, there’s not a whole lot the fedgov can’t justify.

  10. It won’t be long now before the Sullums of the world wipe the sleep from their eyes and notice that lots of states which have a public policy of promoting SSM are trying to compel florists, B&B owners, tourism companies, T-shirt manufacturers, etc. etc. to recognize gay marriage on penalty of fines and damage awards.

    The only question is how they’ll explain to their gay allies how their support for SSM totally was never intended to mean interference with private business decisions. Because intentions trump actual results.

  11. Even among nine people, “democracy” doesn’t work very well.

    Kennedy had to avoid a national dictate against limiting gay marriage, which wasn’t politically temperate, while at the same time arguing for some form of equal treatment. The compromise was a mere sentiment: the DOMA law showed “animus”, a word which isn’t anywhere in the Constitution.

    It will probably be a few more years before Section 2 of DOMA reaches the Court, via lawsuits of married gays moving to “non-gay states”. When it does, Kennedy will fashion a compromise to the “Full Faith and Credit Clause”, endorsing “good-enough” Faith and “no animus” Credit.

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