DOMA & Federalism

Jason Mazzone

Beware of liberals making federalism arguments.

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.  



         



Posted 11:08 PM by Jason Mazzone [link]