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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In the days since the Supreme Court granted review in United States v. Windsor, liberal commentators have invoked federalism and state sovereignty as a reason the Court should invalidate section 3 of DOMA (which defines marriage as between a man and a woman for purposes of federal law). According to those commentators (you know who you are), all nine justices will thus have reason to affirm the Second Circuit's decision: Four liberals will oppose section 3 on the ground of individual rights (the issue actually presented in the case). Four conservatives will oppose it in the name of states' rights. And Justice Kennedy will find section 3 doubly offensive.
Perhaps that's how things will turn out.
But the federalism challenge is more tricky than has been acknowledged.
The state sovereignty argument against section 3 of DOMA goes like this: The power to define marriage has traditionally belonged to the states. Federal law having to do with marriage has traditionally deferred to state definitions. Section 3 of DOMA interferes with a traditional domain of state power by defining marriage at the federal level and in a way that is no longer consistent with how some of the states define marriage. Today (though not when DOMA was enacted) some states recognize marriages between same-sex couples. Section 3 tells states that those marriages are not valid marriages for federal purposes. Marriages that are equally valid within a state are treated differently under federal law.
The problem with the argument and with liberal enthusiasm for it is that a commitment to state sovereignty can easily produce a quite different analysis and lead to a quite different conclusion about DOMA.
Consider two other approaches. One approach would say that section 3 actually has no impact on state power. States are perfectly free to recognize marriages between two men and two women and states are free to give out state marriage benefits in accordance with state definitions. Section 3 is merely about federal law and federal governmental benefits. It is understandable why New York, Massachusetts and other states where same-sex marriage is lawful would want all of their married couples to receive the same federal benefits. But state power to define marriage is not undermined just because the federal government follows a standard, for federal purposes, that does not track that of particular states.
A second approach to the federalism question is also imaginable. This would say that, right now, section 3 is in fact respectful of state sovereignty. Most of the states do not currently recognize same-sex marriages. Many of the states have amended their constitutions to prohibit it. Without section 3, the residents of all of those states would be forced to subsidize (through the myriad federal benefits available to married couples) marriages they refuse to recognize and indeed find objectionable. In the future the calculation might well change but as of now section 3 properly balances the competing approaches among the states.
My point is not to endorse these alternative understandings but only to suggest that there are different ways of looking at the federalism issue.
There is, of course, an additional objection to liberals invoking federalism and state sovereignty as a reason to invalidate section 3: they don't really mean it. Liberals do not object to a federal definition of marriage. They just don't like the definition that section 3 sets forth -- and would very much welcome a Supreme Court ruling that marriage must be defined to include same-sex couples. Liberals also do not really mean that state power to define marriage should be protected for if that commitment carried through the Court would have to hold in Hollingsworth v. Perry that state laws defining marriage between a man and a woman are not unconstitutional. Selective invocation of federalism and state sovereignty is a poor basis on which to rest a constitutional case.
Throughout the course of the litigation over the individual mandate provision of the Affordable Care Act, liberals complained that the federalism challenge to the provision was really a challenge based on individual rights improperly dressed up in the name of state interests. I thought that complaint odd at the time. But if it had merit, then surely the same objection applies now to a states rights challenge to DOMA that is really a challenge based on personal liberty.
Are the federalism issues live in this case? The 2nd Circuit opinion barely makes any references to Federalism (http://www2.bloomberglaw.com/public/document/Windsor_v_United_States_No_122335cv_and_122435_2012_BL_274317_2d_), the cert-stage petitions do not mention federalism, and the question presented only focuses on the 14th Amendment, not federalism.
To the extent I understand the DOMA federalism argument, I believe it goes something like this—gay rights supporters are willing to concede (for purposes of argument only) that there is a sufficient government interest in maintaining the traditional definition of marriage so as to satisfy rational basis scrutiny, but they contend that this cannot justify DOMA because (a) DOMA does not advance the governmental interest (or does so to a lesser extent) because it does not prevent gay marriage under state law and/or (b) more amorphously, federalism concerns should be weighed in the ends/means balance, making it more difficult to satisfy whatever level of scrutiny is said to apply.
The whole thing has the contrived feel of seizing on your opponent’s jurisprudence for purposes of getting the desired result in a particular case- thus, Bush v. Gore would be a better analogy than the ACA case.
Josh is correct - federalism is barely a concern in the opinion taken (it factors into the analysis a bit) unlike the 1CA.
Federalism, which actually is the correct balance of national/state power not just localism, can bite you in the butt no matter what side you are on. Thus, it tends to be applied selectively with various assumed "givens."
The 1CA opinion, regardless, makes the state rights case to some degree, including how DOMA respecting one form of marriage burdens states with it by denying various benefits that will result in serious money issues alone.
Other understandings of federalism could refute the importance of this but as to the "second approach" noted, that could apply to any specific type of marriage that "most states" don't recognize. But, federalism protects even outliers. That is part of the point.
Neither liberals or conservatives "really mean it" in various cases. It isn't the main argument of liberals here anyhow. But, liberals do understand the value of letting change develop in the states and DOMA artificially hindered the development.
"Liberals" also don't have one big argument -- there are specific cases, with different arguments.
Nonetheless, the problem with the Prop 8 law is the gratuitous symbolic nature of the law given the facts of the case. It is why it is a fairly easy target as compared to some state that denied SSM but did not provide civil unions or first protect, then deny it. States have broad discretion over a lot of things under federalism ideals but specific cases can still be a problem.
I'm not certain why, when conservatives make federalism arguments, they are seen as representing the right and true and pure brand of federalism, while when liberals make federalism arguments, it is seen as cynical opportunism. Certainly there is some of each on both sides, but you paint liberals with a very broad brush here.
But the deeper flaw in this analysis is the idea that individual rights and federalism are two different species. As the Supreme Court unanimously recognized in Bond v. U.S., federalism exists precisely to further individual rights. And some have been writing for years about the intertwined nature of states' rights and individual rights in the first ten amendments, given that it was the champions of states' right, the Anti-Federalists, who demanded that the Bill of Rights be added to the Constitution. The Due Process Clause of the Fifth Amendment, the provision at issue in Windsor, is a prime example. Given the origins of the concept of due process of law in the "law of the land" provisions of Magna Carta and the state constitutions, it is perfectly reasonable to interpret "due process of law" as meaning "according to the law of the STATE." And before you chuckle at the notion that federal law must sometimes follow state law, think about whether that is less reasonable than pretending that the Due Process Clause of the Fifth Amendment, ratified in 1791, somehow incorporates a provision ratified in 1868.
"somehow incorporates a provision ratified in 1868"
Bolling v. Sharpe explained that equal protection and due process are not exactly the same thing but that some aspect of equal protection is involved in it all the same.
The DOI says it is "self-evident" that equal protection is the "law of the land." Pre-14A, scholarship dealt with this, various state courts recognized some kernel of equal rights in due process of law w/o going all the way.
Anyway, "due process" is particularly open to development and we need not take a strict originalist stance here. The "law of the land" after 1868 entailed a stricter idea of equal protection. The 13A robbed the basic reason why blacks were treated differently, the 19A (see Prof. Akhil Amar et. al.) significant changed the reasonableness of laws regarding women.
Does this situation in any way relate to the situation regarding community-property law?
It is my understanding that the federal tax break currently favoring married couples was brought about by the federal advantages that couples had enjoyed in those few community-property states that had attributed half the earnings of one spouse to the other spouse, significantly reducing their federal tax burden vis-a-vis that of one-earner married couples in the non-community-property states.
I wonder what would happen if one state were to overturn the actual situation of discrimination against single persons, who are apparently denied over 1000 benefits accorded married persons.
That could be accomplished by simply prohibiting the use of terms referring to marital status in all laws of the state, effectively treating everyone as an individual person and marriage as a mere religious matter.
Such unilateral action by one state might result in emasculation of federal categories relating to marriage, including the so-called "marriage tax" and have myriad other positive effects.
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