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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
He is partly right.The federalism argument doesn’t make much sense in this context.But it is not the strongest argument against
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.
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
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.
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.