Balkinization: Mazzone, DOMA, and “liberals”

Mazzone, DOMA, and “liberals”

Andrew Koppelman

My Balkinization colleague Jason Mazzone’s timely piece on DOMA and federalism castigates unnamed “liberals” for making federalism-based arguments against the statute. It’s hard to tell who he has in mind, since he doesn’t say, but his piece can leave the misleading impression that he is describing the central claims of the challenge against DOMA.

He is partly right. The federalism argument doesn’t make much sense in this context. But it is not the strongest argument against DOMA.

An analysis I developed more than two years ago, after the first district court invalidation of the statute, is now relevant again. Here it is, from the Los Angeles Times, July 10, 2010:

Last week, a federal court in Massachusetts held unconstitutional the provision of the federal Defense of Marriage Act, known as DOMA, that denies federal benefits to same-sex spouses. The ruling relied on two arguments: that the law interfered with the rights of states guaranteed in the 10th Amendment, and that it violated the Constitution's equal protection clause. The first of these arguments doesn't make much sense, but the second is so strong that it has a good chance of being accepted by the U.S. Supreme Court.

Section 3 of DOMA requires that marriage, for all federal purposes, be defined as the union of one man and one woman. It was challenged by the attorney general in Massachusetts, where same-sex marriage is legal, and also in a separate suit by seven married same-sex couples and three widowers in the state who had been in same-sex marriages. The plaintiffs include the surviving spouse of Rep. Gerry Studds (D-Mass.), the first openly gay man to serve in Congress. After Studds' death, his spouse was denied both health insurance and the normal survivor annuity — the only widower of a member of Congress to be refused these benefits.

In the case brought by Massachusetts, the court held that DOMA intrudes on "traditional government functions," specifically the state's right to define what marriage is. In the individuals' cases, it held that there is no rational basis for denying federal benefits to same-sex spouses in marriages legally recognized in their states. The first of these arguments is silly, and potentially mischievous. But the second is very strong, and can and should carry the day if, as is likely, the case is appealed all the way to the Supreme Court.

The trouble with the states' rights argument is its implication that whenever a federal law uses the word "marriage" to define the scope of some federal program, it is obligated to follow state law. But an obvious counterexample exists: immigration. In most states, the government doesn't involve itself in the reasons a couple marries, even if there's no love involved and the marriage is primarily a business transaction or a matter of convenience. But when people marry for immigration purposes, the federal government has no trouble deeming the marriage "fraudulent," even though it remains valid under state law. The Immigration and Customs Enforcement agency doesn't interfere with traditional state functions because it leaves the state free to recognize, for its own purposes, any marriage it likes. But it won't grant legal residency to immigrants it believes married only to secure the benefit.

The other part of the court's ruling, however, held that DOMA lacked a rational basis because none of the government's justifications for the law's blanket discrimination made sense. It's hard to see, for example, how the law would protect traditional marriage. Are same-sex couples going to be discouraged from marrying because they wouldn't be entitled to be buried together in a veterans cemetery? Not likely. This irrationality, and the unprecedented burden it imposes — no class of state-recognized marriages has ever before in American history been subjected to this kind of federal discrimination — led the court to infer an unconstitutional purpose: a bare desire to harm a politically unpopular group.

The case will probably be appealed. But will it be upheld? This Supreme Court is unlikely to conclude that same-sex marriage must be allowed in all states. But you can invalidate DOMA without going that far, by focusing on its unprecedented, blunderbuss character.

On the current Supreme Court, this case would probably depend on the swing vote of Justice Anthony M. Kennedy. (If he is still there when it is heard — appeals take years, and he turns 74 later this month.) In a 1996 decision striking down a Colorado law that repealed all antidiscrimination protection for gay people, he noted that it "has the peculiar property of imposing a broad and undifferentiated disability on a single named group." This kind of imposition "is unprecedented in our jurisprudence," and he declared that it "is not within our constitutional tradition to enact laws of this sort." Similarly, in a 2003 decision invalidating a law banning homosexual sex, he observed that such gay-specific laws were very recent, originating in the 1970s. That same logic might well condemn DOMA, but it would be unlikely to invalidate the marriage laws of individual states.

Even the states' rights argument could be rehabilitated if, on appeal, Massachusetts focuses on the equality argument. The district court ruled in favor of the state for two independent reasons, only one of which relied on inherent state functions. The other, better argument was that a state can't be required to violate the Constitution in order to get federal funds. If DOMA is unconstitutional because of the way it singles out gay people to beat up on, then states can't be denied federal funds when they refuse to administer it. For example, if DOMA's requirement that same-sex couples be excluded from veterans cemeteries is unconstitutional, then Massachusetts can't lose its federal funding when it buries a same-sex couple in a state-administered veterans cemetery.

There's a lesson here for lawyers. There is a temptation in litigation to make every argument you can possibly think of, hoping that something will persuade the judge. Here, though, that strategy has backfired: The judge bought both arguments, the bad one as well as the good one, and so his opinion ended up looking weaker than it really is.

Posted 11:42 PM by Andrew Koppelman [link]