Further Thoughts on Windsor (DOMA)

In addition to the procedural issues in the DOMA case that I discussed in my prior post, there was an interesting substantive point as well: federalism. Counsel for BLAG framed it this way:

On the assumption that States have the constitutional option either to define marriage in traditional terms or to recognize same-sex marriages or to adopt a compromise like civil unions, does the Federal Government have the same flexibility or must the Federal Government simply borrow the terms in State law?

I would submit the basic principles of federalism suggest that as long as the Federal Government defines those terms solely for purposes of Federal law, that the Federal Government has the choice to adopt a constitutionally permissible definition or to borrow the terms of the statute.

Later on, Justice Sotomayor directly challenges that claim:

But what gives the Federal Government the right to be concerned at all at what the definition of marriage is? Sort of going in a circle. You’re saying — you’re saying, we can create this special category — men and women — because the States have an interest in traditional marriage that they’re trying to protect. How do you get the Federal Government to have the right to create categories of that type based on an interest that’s not there, but based on an interest that belongs to the States?

Justice Kennedy also seemed skeptical:

But [DOMA affects] 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.

Later, the counsel for BLAG also argued that DOMA just creates “uniformity” in federal recognition of marriage, an argument that’s rebutted rather sharply by Sotomayor and Breyer:

JUSTICE SOTOMAYOR: But that’s begging the question, because you are treating the married couples differently…You are saying that New York’s married couples are different than Nebraska’s.

JUSTICE BREYER: You would say it would be the same thing if the State passed a law — Congress passes a law which says, well, there’s some States -they all used to require 18 as the age of consent. Now, a lot of them have gone to 17. So if you’re 17 when you get married, then no tax deduction, no medical, no nothing.

Now I remain unpersuaded by the federalism argument. I don’t think anything in the Constitution suggests states should have the capacity to force a classification scheme upon the federal government (which says nothing about whether they ought to be able to do so). And clearly DOMA hasn’t interfered with states choosing to implement SSM, so I can’t see how the federal government has interfered with the states at all. To the extent DOMA is unjust because it selects one specific state marriage regulation to ignore–not age, not kinship status, just gender–it becomes an equal protection problem, not a federalism problem.

But here’s why the federalism argument matters. Imagine you’re a conservative justice who’s just not ready to support SSM itself, and not ready to see homosexuality as deserving of equal protection, as a civil rights issue, but you can look at the world around you and realize that politically and publicly, the civil rights claim is winning. You know that in the long run you’re going to lose on this issue–that whatever the Court rules today, down the road it will ultimately recognize SSM as a civil rights issue. And as a conservative, you might have some real fondness for federalism. You don’t want to support SSM, but you also don’t want to be seen in the same light as the justices who formed the majorities in Plessy v. Ferguson or Korematsu v. U.S. In that case, federalism would give you an alternative hook on which to hang your decision, standing on the right side of history–at least sort of–by striking down DOMA without having to take a stand on the equal protection/civil rights argument.

It’s sort of an elegant solution for a justice in that position, even if the federalism reed is pretty slim. Whether there are any justices in that position, I’m not sure. But given Roberts’ apparent interest in keeping the Court politically popular, I wouldn’t be shocked if that’s his line of reasoning.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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6 Responses to Further Thoughts on Windsor (DOMA)

  1. Stillwater says:

    James, I agree with your reasoning here on both levels: that the federalism argument is very thin as well as remaining very attractive to the conservative justices. Personally, I don’t see how they can thread that needle except arbitrarily. I think Soto’s response encapsulates exactly where I’m at on the whole thing: either the Federal government does or doesn’t have an interest in marriage. If it does, then equal protection is a legitimate concern; if it doesn’t then DOMA is unconstitutional anyway. Prop 8 clearly fails on EP grounds unless marriage is carved out as an exception. (Which is why Scalia was so aggressively pursuing the “harm to children” argument, of course, because if that’s a legitimate concern discriminating against gays wouldn’t be arbitrary. (That argument fails, it seems to me, wrt California.))

    Like I said at the League, tho, these guys are very clever and I’m sure I’ll be surprised by each sides respective arguments.

  2. James Hanley says:

    either the Federal government does or doesn’t have an interest in marriage. If it does, then equal protection is a legitimate concern; if it doesn’t then DOMA is unconstitutional anyway.

    Well put.

  3. Matty says:

    What about this? The problems cited look significant, though probably still better for a lot of people than the status quo.

  4. James Hanley says:

    Eh, I’m not that impressed with the argument. He’s arguing that taking an incremental approach would be hugely problematic because it would just invite more cases, but that’s to ignore that incrementalis, is the Court’s standard, traditional, long-standing approach. There were multiple cases leading up to Brown v. Board of Education, each chipping away at the separate but equal rule, with the Court declining to go all the way to overruling that standard (that they had created) until they’d laid the groundwork. The same is true of the right to a public defender, with the Court finding through a series of cases “special circumstances” in which defendant’s 6th Amendment rights required that the state provide an attorney, until finally they ruled that all criminal defendants must be provided an attorney, period, in Gideon v. Wainwright. And of course the Court hears an endless sequence of speech and due process cases, because there’s always some new wrinkle in how states try to violate our constitutional rights.

    This Harvard law prof clearly knows this, so why he’s suggesting it’s problematic isn’t clear, unless he just dislikes the Court’s traditionally conservative incrementalism. To be sure, he’s surely right about the types of cases that would come up if the Court rules on those narrow federalism grounds, but I don’t grasp why he thinks those likely cases would be problematic from the Court’s perspective. It seems to me it would just be another typical sequence in the Court’s history.

  5. Matty says:

    I think the problem is I’m not thinking legally – I’m seeing the issue as “Should gay couples have the same marriage rights as straight couples” and seeing the linked essay as evidence a narrow ruling doesn’t answer that. But of course that question isn’t actually before the court, they have a more specific legal question to which a narrow federalism ruling might well be the right answer.

  6. lancifer666 says:

    Numerous five to four decisions, that just happen to come down on party lines, have made me a Supreme Court cynic. I think the court, sensing the shift in public acceptance of gay marriage, will probably make some incremental move towards legalizing same sex marriage by restricting portions of DOMA while upholding others.

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