an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Be Careful What You Wish For Department: Federal District Court Strikes Down DOMA
Today Judge Joseph Tauro in the federal district court in Massachusetts struckdown section 3 of the Defense of Marriage Act (DOMA) in two opinions, Gill v. Office of Personnel Management, and Massachusetts v. HHS. Section 3 of DOMA requires that marriage, for purposes of federal benefits programs, must be defined as the union of one man and one woman, so that same sex marriages cannot take advantage of any federal benefits programs. Gill holds that this violates the equal protection component of the Fifth Amendment because there is no rational basis for denying same sex couples already recognized in a particular state from receiving federal benefits. Massachusetts v. HHS holds that federal programs that deny benefits to married same sex couples violate the Tenth Amendment because they intrude into an function exclusively reserved to states, namely the definition and regulation of marriage. It also holds that selective funding of only opposite sex couples is not within the federal spending power under the General Welfare Clause because it places an unconstitutional condition on the receipt of federal funds.
I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not-- and I do not-- Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge-- who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are--is in a very different position than I am.
Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power. To be sure, there is something delightfully playful and perverse about the two opinions when you read them. Judge Tauro uses the Tenth Amendment-- much beloved by conservatives-- to strike down another law much beloved by conservatives--DOMA. There is a kind of clever, "gotcha" element to this logic. It is as if he's saying: "You want the Tenth Amendment? I'll give you the Tenth Amendment!" But in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness-- which is certain to twist both liberal and conservative commentators in knots-- I do not support the logic.
The arguments of Judge Tauro's two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government's taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.
In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?
(In one of the wildest parts of the Massachusetts v. HHS opinion, Judge Tauro resurrects Chief Justice Rehnquist's "traditional governmental functions" approach from National League of Cities v. Usery, which was specifically overturned in 1985 in Garcia v. San Antonio Metropolitan Transportation Company on the grounds that it was completely unworkable. The existence of Supreme Court authority, however, does not stop Judge Tauro; he simply notes that a First Circuit decision predating Garcia that used the concept to uphold the federal child support recovery law is still on the books, and who knows, maybe the Supreme Court will change its mind!)
Moreover, while insisting that marriage is a distinctly state prerogative, Judge Tauro argues that the federal constitution makes it irrational for the federal government to discriminate between same and opposite sex couples. But if so then it follows that it would also be irrational for a state government to discriminate, because the test under the Fifth Amendment equal protection component and the Fourteenth Amendment's Equal Protection Clause (which applies to the states) is the same. Thus Judge Tauro is saying that marriage is none of the federal government's business, except, of course, when a federal court thinks otherwise. He is, in essence, laying the groundwork for an equal protection challenge to state marriage laws in virtually every state. This is not a result that is particularly respectful of state prerogatives!
Finally, Judge Tauro's attempt to limit federal power through the Tenth Amendment so that it does not interfere with state prerogatives might delight members of the contemporary Tea Party movement (at least if it wasn't aimed at DOMA), but it should give most Americans pause. The modern state depends heavily on the federal government's taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.
There is much to admire in Judge Tauro's bravery in writing these opinions, and in his forthright declaration that the federal government's policy is unjust and unreasonable. His two opinions are wild, audacious, and fearless in their logic. But for the same reason, they will and should be quickly overturned. I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way.
UPDATE: I have much more to say about the equal protection arguments in Judge Tauro's opinions here.