Friday, November 30, 2012

The Defense of Marriage Act

Gerard N. Magliocca

Today the Justices will hold a conference that may decide whether certiorari will be granted on the cases declaring Section 3 of DOMA unconstitutional. Assuming that one of these petitions will be granted, I want to explain why I think that the Court should use the constitutional avoidance canon and hold that DOMA simply does not apply to marriages contracted in states that permit same-sex marriage.

How can DOMA be read this way? Here is the relevant language of Section 3:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife."

This seems unambiguous, right?  But it is not.  Why?  Because the background assumption in 1996 was that no state recognized same-sex marriage.  In other words, Section 3 was just declaratory.  Indeed, the managers of the bill indicated that Section 3 was meant to codify the traditional definition of marriage. Now that the background assumption has changed and some states do permit same-sex marriages, Section 3 should be construed in light of that change.

Is this the most straightforward reading of Section 3?  No.  But the Chief Justice explained in upholding the Affordable Care Act that this does not matter when a court is construing an Act of Congress.  The only question is whether a saving construction is a "fairly possible one."  I submit that reading Section 3 as declaratory language that was (and still is) tethered to state law is fairly possible, and thus the Court can dispose of the DOMA challenges without reaching the constitutional issues.

UPDATE:  Sorry for the odd typeface in the prior version of the post. 


No, it is unambiguous, you're engaging in... Well, I can't even call it "sophistry", as even sophistry at least looks a little bit like a real argument.

I guess "handwaving" would be the right term here. Clumsy handwaving, at that.

If this were a "fairly possible" construction of the DOMA, it would be a "fairly possible" construction of your post to take it as a recipe for bean soup.

As a law professor, don't you worry that posts like this might encourage your students to see law as a game where there are no rules? Or a game in which the rules can be changed arbitrarily at any time?

mls' concern fails to recognize that law students over many, many decades, a couple of centuries, who become lawyers seek out loopholes. Perhaps mls has never sought a loophole himself but many of us have in all fields of law. There are good and bad loopholes. Perhaps with law professors like Gerard, law students who become, or advise, elected official can be in a better position to make sure that legislation does not provide loopholes.

Perhaps Gerard's point on the declaratory aspect of Section 3 might be compared to the introductory clause of the Second Amendment.

As to Brett's sophistry claim, consider that the Constitution as amended does not specifically address the component parts of marriage. In fact, the Constitution as amended to date, as I recall, does not specifically reference marriage. Perhaps the equal protection clause might be considered in addressing same sex marriage. Also, Brett's reference to "clumsy" "handwaving" reveals more about Brett's obvious phobia than perhaps he intended. And Brett's reference to "bean soup" reminds me of a cartoon years ago of a patron at a restaurant asking the waiter what kind of soup he was given, to which the waiter responded: "Sir, that's bean soup," to which the patron countered: "I don't care what it's been, I wish to know what it is now."

I think you've got the background assumption of DOMA wrong. The whole reason that DOMA was enacted was the fear in the wake of the Hawaii Supreme Court decision that states were going to start authorizing same-sex marriage. Hence Section 2 of DOMA, which authorizes other states not to give those marriages full faith and credit, and Section 3 of DOMA, which makes clear that the federal government likewise will not follow state law on this issue. Absent the fear of changing state law, there was no reason to enact DOMA in the first place.

To take this post far more seriously than it mandates, I have to point out that DOMA did not merely seek to codify a definition of marraige. The langage you quoted specified what the definition it sought to codify was.

This does not leave chosing a different definition within the allowable, or even sane, range of interpretations of DOMA.

Section 2 of DOMA is not inconsistent with my view. It says that no unwilling state must recognize a same-sex marriage from another state. That says nothing about how Section 3 should be read.

Besides, lots of federal states are read against the backdrop of state law even when state law is not expressly incorporated. Just like I've done here.

I don't even understand the argument. Which words are ambiguous and what are the two possible meanings of those words?

None are ambiguous, that's the problem. This isn't the usual case of exagerating ambiguity, Gerald is simply pretending ambiguity is present where the text is utterly clear.

This is a prime example, I have to say, of why lawyers have gotten such a horrible reputation. (Well, that, and billing practices...)

Brett's personal anecdote re:his:

"This is a prime example, I have to say, of why lawyers have gotten such a horrible reputation. (Well, that, and billing practices...)"

on another thread is hilarious. Imagine someone as smart as an engineer being snookered on an uncontested divorce (although I suspect the anecdote is contested) by a mere lawyer. The law is not rocket science; even an engineer should know that.

Hashim addresses my main concern with this post.

A major 'background assumption' was that a state was about to recognize SSM (Hawaii) and the others could as well. This reality, which seemed unlikely at best in the past led to the legislation in the first place.

The current reality was exactly the sort of thing the law was meant to address, though the number of states involved might be somewhat unexpected.

Ignoring this is not really reasonable. Less so than the tax approach for PPACA, which was raised as an option as it was being drafted & is imho a reasonable reading of the reality of the situation.

The idea Sec. 3 was merely declaratory and not preventive, so to speak, is much weaker. I don't really think it is "fairly possible."

I also think the need for this bit of forced constitutional avoidance is much less too than when what was at stake was such a large piece of regulation that would fall to the wayside.


Yes, Shag, utterly hilarous, a man suidically depressed over the breakup of his marriage being cheated of thousands of dollars by a lawyer.

Somehow I don't think we find the same things funny.

I don't recall the words "suidically depressed" appearing in the comment I had referred to. (It's of course possible that Brett had comments on the situation at other blogs that I am not aware of.) Rather, it was the reference to an uncontested divorce and the charges made by the attorney (which were not quantified) that were hilarious, to me, having handled divorces - contested and uncontested, during my long career. While a divorce may be uncontested, there may be complex issues - custody, alimony, property settlement, taxes, etc, - involved, leading to legal fees that may seem out of proportion. But Brett did not, at least in the reference I had noted, detail any complexities or other details, other than the divorce being uncontested and a large legal fee charged. I know nothing about the attorney who represented Brett and don't care to know the details. But Brett should not be attacking lawyers in a general way. Yes, there are a few rotten apples out there in the legal bin, just like ther are a few rotten engineers. Brett chose this forum on a personal, anecdotal matter to vent against the legal profession. Perhaps his comments at this Blog and other legal blogs reflect his personal, anecdotal encounter with a lawyer.

The good news is that Brett has survived. Life goes on - as does politics. Now let's look for some more loopholes in DOMA and the Constitution, or design a bridge to nowhere.

Hashim is right. Maybe the real* argument here is that DOMA reveals massive scriveners error across all federal statutes and regs that use the word "marriage." The intent of these federal statutes and regs was to incorporate state concepts of marriage into the federal law, not to take a stand-through-the-states on what the word "marriage" means. DOMA's only concern is to reserve the word "marriage," in federal statute drafting, for straight marriage. (This is supported by DOMA's language. It doesn't say "for purposes of federal law marriage is between a man and a woman," but rather that in federal law "the word 'marriage' means only a legal union between one man and one woman as husband and wife...") But this means that DOMA has brought the text of all the federal statutes and regs that use the term "marriage" into conflict with their intent. Thus, the best way to reconcile Congress's intent in DOMA and its intent in all of the other statutes is for the Court to hold that, in all statutes but DOMA, the term "marriage" is actually "schmarriage" and refers to marriage-as-defined-in-the-states. That way federal law will neither contribute to the "redefinition" of marriage that those who passed DOMA presumably abhor, but nor will it allow infelicitous drafting to undermine Congressional intent and all of the federalism benefits that come from incorporating the legal substance of state concepts of marriage into federal law.

This isn't all that non-textualist either. I think even Scalia concedes that textualists can correct scriveners error. And anybody who thinks it implausible that Congress could make so many of the same kind of drafting mistake should remember that Congress couldn't know, prior to DOMA, that "marriage" didn't mean what it thought it meant, so its host of drafting errors is actually perfectly understandable. And constitutional avoidance is surely worth any residual awkwardness, right?

* By which I mean, in keeping with the tenure of the comment, "not real."

Yes, Shag, utterly hilarous, a man suidically depressed over the breakup of his marriage being cheated of thousands of dollars by a lawyer.

Somehow I don't think we find the same things funny.
# posted by Brett : 4:48 PM

If that someone was you it'd be pretty damned funny...

Alas, Frank Sinatra is no longer with us for a rendition of:

"Love and schmarriage"

with a further variation of the line:

"Goes together like a horse and carriage"

that I'll leave to others.

As to textualist Scalia and his disdai(n of legislative history, he might turn into a pretzel for real, with Angus' scrivener's error approach as it explores scrivener's intent.

My apologies, but the song "love and marriage" always brings to mind the theme song to Married ... with Children.

Side effects, Joe, side effects. (Fortunately my four encourage me to stay in good health. But only one grandchild. I look forward to a few more.)

I wasn't a big fan of "Married ... with Children" which helped pave the way to "Two and a Half Men," which I enjoyed before Charlie Sheen's departure.

If that had been an argument supporting torture, John Yoo would have been too embarrassed to have made it.


Didn't you get the 411? Words have no meaning and the law is only whatever five black robes think is "fairly possible."

If a so called conservative like Roberts can find the individual mandate is both a penalty and a tax to hold Obamacare constitutional, the rewrite of DOMA suggested by Gerard is also "fairly possible."

The rule of law is just so 19th century.


Well, the show in effect was satire in response to the Cosby Show and the like & it is a matter of taste.

Three of the actors continue in serious (or less crass) roles these days. Another is a lesbian, so I guess there is a bit of germaneness.

Anyway, Scotusblog has some good discussions on these cases and the last word was "to be cont."

"Words have no meaning and the law is only whatever five black robes think is "fairly possible.""

No one has a monopoly on this, the same decision saw the word 'coercion' stretched to include 'yeah, they could say no, but it would be hard politically!'

"The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated."

Madison, Fed. 37

The meaning only determined by practice, error likely, but with the chance for future correction.

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