Advocates of gay rights need at least one more vote on the Supreme Court to be confident of bringing such a case before the Supremes, or they need about ten more years, or both. Perhaps this litigation will continue that long, or perhaps one or more conservative Justices will retire in the interim, or perhaps public attitudes will shift dramatically toward same-sex marriage and many more states than the current handful will adopt same-sex marriage. All this could make a difference. Perhaps Justice Kennedy will provide the fifth vote and provide the majority opinion, thus creating the gay rights trifecta of Romer in 1996, Lawrence in 2003, and Gill in 2012.

Even so, I remain skeptical of the present possibilities for success. Whether one likes it or not, we are not in the same situation as Loving v. Virginia in 1967, when only 17 states still banned interracial marriage; or Lawrence v. Texas in 2003, when only 13 states still criminalized same-sex sodomy. Bringing a challenge to same-sex marriage to federal court in 2010 is a little like trying to get the federal courts to decide Lawrence in 1972 or Loving in 1948, immediately after California's decision in Perez v. Sharp. It's bold, it's courageous, it's daring, and its probably doomed. Thus, Judge Tauro will have succeeded in a temporary victory for gay rights at the cost of making bad law at the appellate level that binds him--and other district courts--for many years.

Perhaps, though, following Andy's post, there's another way. Suppose we can thread the needle: come up with a way of striking down section 3 of DOMA under the equal protection clause that doesn't also simultaneously require the Supreme Court to strike down all state marriage statutes that don't recognize same-sex couples.

So let me explore the court's equal protection arguments, working under the assumptions of current law-- that gays and lesbians are not a suspect class, and that there is no federal constitutional right to same-sex marriage.

Under those assumptions, can we say that section 3 of DOMA violates the equal protection clause because it discriminates against same-sex couples?

In Gill the federal government made the remarkable admission that it would not rely on four standard arguments for treating same-sex couples differently from opposite-sex couples-- four arguments that have been used in the past by state courts rejecting constitutional challenges. Thus, the federal government did not offer as justifications for DOMA: encouraging responsible procreation, protecting traditional heterosexual marriage, defending traditional morality, and preserving scare resources.

The fact that the federal government has officially distanced itself from these often used rationales--and does not believe they provide a rational basis for DOMA--is an important and noteworthy event. It will prove quite important later on in future litigation over federal rights. But remember, for purposes of this discussion, we are not assuming a general federal right to same-sex marriage.

Of course, even though the federal government said it would not rely on these justifications, Judge Tauro went ahead and said they were all irrational anyway. He is correct; they are not rational justifications for denying gays and lesbians the right to marry. The difficulty is that following this dicta would also strike down all state marriage laws under the equal protection clause.

What the federal government actually did argue was that section 3 of DOMA had a rational basis on other grounds. It offered two. The first was that Congress wanted to preserve the status quo pending the resolution of a socially contentious issue within the various states, and the second is that it wanted to proceed one step at a time in incorporating same-sex marriage rights given a quickly changing political landscape.

Judge Tauro argued that these interests weren't rational. First, he argued that Congress has no authority to regulate marriage because "the subject of domestic relations is the exclusive province of the states." This is not a promising start, for reasons I explained in my last post: the federal government has been involved in regulating families since Reconstruction.

Judge Tauro also denied that "Congress has [an] interest in a uniform definition of marriage for purposes of defining federal rights, benefits, and privileges." But why wouldn't Congress have a legitimate interest in defining its own federal rights, benefits and privileges? It's the federal government's money after all, and why wouldn't they care about how it was spent? The fact that the federal government has generally followed state definitions of marriage in the past does not prevent the federal government from ever claiming an interest in the future about how federal benefits for married couples are doled out. Suppose for example, that the federal government sought to treat cohabiting couples as married for federal tax purposes even though most states did not for purposes of their own state income tax, or suppose the federal government refused to treat cohabiting couples as married for federal income tax purposes even though some states did for purposes of their tax laws. Would this violate the Constitution because it lacked a rational basis? I'm not sure that it would. Does Judge Tauro's reasoning commit us to that position?

Besides, the federal government's best argument is not simply that it wants a uniform definition of marriage *in all cases,* but that it wants to preserve the status quo on this particular issue-- same sex marriage.

Now how you describe the status quo is itself controversial. Is the status quo only providing benefits to opposite sex couples, or is the status quo simply following state law whatever it might be? Judge Tauro argues that it's the latter, and not the former. But if you take the federal government's argument seriously, it is arguing that the controversy in question concerns the adoption of same-sex marriage, and therefore the status quo--before the controversy began--is providing benefits only to opposite-sex couples. Judge Tauro has not really explained why it is irrational for the federal government to call this position the status quo if the federal government is responding to a controversy around this particular change in marital status laws.

Judge Tauro's strongest argument, it seems to me, is that the federal government has generally followed state definitions of marriage in handing out federal benefits, and it has tracked state changes in marriage laws. It simply has asked whether a couple is married under relevant state law. For example, even when the issue of interracial marriage was hotly contested, and only some states permitted it, the federal government recognized those marriages as eligible for federal benefits. Moreover, as Judge Tauro points out, states have different ages at which people can be married; New Hampshire allows a 13 year old female and a fourteen year old male to get married with their parents consent, and no other state does. He might also have mentioned that states have different rules for how close a relation a person can marry (first cousins, second cousins, etc.) The fact that some states might object morally to the rules in other states has not prevented the federal government from recognizing these marriages. (Of course, there hasn't been a big controversy about it either.)

In this case, however, the federal government is singling out one set of marriages-- same-sex marriages-- and refusing to follow whatever definitions a state adopts for purposes of awarding federal benefits. This variance from customary practice, Judge Tauro argues, shows that the federal government has no rational justification for section 3 of DOMA. In the alternative, as Andy argues, it shows evidence of an invidious purpose to harm an unpopular group.

In my view, this is the best version of an equal protection argument, under current law. But the problem with arguments from tradition is that they don't show that deviations from tradition are irrational. They merely show that they aren't traditional.

Suppose the federal government says that the government is facing a political controversy different from the one it faced with interracial marriage, and closer to the controversy that it faced (and still faces) over abortion. (Judge Tauro might disagree, but does he think that federal judges know how to assess political situations better than actual politicians?) Congress reasons as follows: The decision to give federal benefits to interracial couples met with fairly little resistance in the early twentieth century, but that is not true in the case of same-sex marriage, and the latter case is far closer to what happened with abortion. In the case of abortion, the federal government ultimately decided not to use any federal money to subsidize abortions, even though the courts had recently recognized that there was a federal constitutional right to abortion! The Supreme Court upheld this policy in Harris v. McCrae. Would it be irrational for the federal government to offer abortion as a better analogy to explain why it wanted to stay out of the controversy regarding same-sex marriage? (After all, the same social movements opposing abortion are also opposing gay rights.)

In addition, why couldn't the government say that it is proceeding one step at a time-- a familiar argument in economic equal protection cases. Given the intense controversy surrounding same-sex marriage, the federal government wants to stay out of the question of recognition, which is highly controversial, until it knows more about how same-sex marriage actually works in practice. When a sufficient number of states have recognized same-sex marriage, and there is a sufficiently long track record, Congress will then revisit the question of federal benefits for same-sex couples. If there is no fundamental right or suspect classification involved, why is this policy irrational?

Here is another analogy: Suppose that a huge controversy develops, which didn't exist before, around New Hampshire's child marriage statute, and the age that people can get married. Suppose that in some states constituents have traditional or religious reasons to prefer that families arrange marriages for their minor children, believing that it will lead to healthier, more stable marriages in the long run, and they successfully lobby to lower the age of marriage to 12 with parental consent. Suppose further that a huge controversy develops about whether this is a good or a bad thing, and suppose further that the controversy is surrounded with allegations of religious and ethnic intolerance. As a result, Congress withdraws recognition of federal benefits to marriages of people under the age of 16. Would this statute violate the right to marry? Would it lack a rational basis?

Now the problem we are facing in each of these examples is that we are assuming, under existing law, that gays and lesbians are not a suspect class and that there is no general federal right for same-sex couples to marry. Moreover, we are asking whether there is any rational basis on any conceivable set of facts that Congress might have contemplated when it withdrew federal benefits from certain marriages. So you see the problem. If you start from these premises, there may well be a rational basis for section 3 of DOMA.

Or maybe not. Suppose we can show that the real reason for DOMA was that a lot of people in the Congress that passed DOMA hated or feared gay people and wanted to harm them. Then under Romer v. Evans, DOMA is unconstitutional under the equal protection clause because it was enacted out of a bare desire to harm a politically unpopular group. The problem is that many of the people who voted for DOMA were not homophobes. They did not fear gays; they feared their constituents. They just wanted to get reelected, and they wanted to remove the issue of gay marriage from the legislative agenda and kick it down the road for a decade or so. That certainly describes Bill Clinton and many other liberal and moderate Democrats. How does Romer v. Evans apply to that kind of statute? (It's worth noting that DOMA was passed by a vote of 85-14 in the Senate and 342-67 in the House, so an awful lot of liberal Democrats signed on. To strike down section 3 of DOMA under a Romer v. Evans argument, do you have to argue that all those Democrats voted for--and Bill Clinton signed--DOMA out of a bare desire to harm gays?)

Finally, there is one other situation where withdrawing federal benefits might violate the Constitution. Suppose that the federal government takes the position that if Massachusetts participates in any federal program using federal money, and if any of the money in any of the programs goes to same-sex couples, the State will lose all federal funding for all federal programs. In that case there is a much stronger argument that Congress is not trying to preserve the status quo but is actively trying to strong arm Massachusetts into harming gay and lesbian couples. But as I understand the facts of this case, DOMA does not work in this way. Rather, DOMA does not give Massachusetts the discretion to use the federal component of federal benefits programs like Medicaid to assist same-sex couples.