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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
The Supreme Court, “Conjugal Marriage,” and DOMA: A Response to Girgis, Anderson, and George’s Appeal to SCOTUS to “Let the People Choose”
In an opinion piece in yesterday’s Wall Street Journal, "The Wisdom of Upholding Tradition," Sherif Girgis, Ryan Anderson, and Robert George offer an argument for "conjugal marriage." Their impetus for writing is that: "The U.S. Supreme Court decides next week whether to hear challenges to laws defining marriage as the conjugal union of a man and a woman." Another impetus is launching their forthcoming book, What Is Marriage? Man and Woman: A Defense, an elaboration upon their similarly-titled and much-circulated law review article. The authors note that the voters in three states – Maryland, Maine, and Washington – chose, just a few weeks ago, to approve legislation extending civil marriage to same-sex couples. They contend that these voters endorsed a "revisionist view of marriage as the union of any two adults." They take heart from the contrasting example of North Carolina voters amending their constitution, earlier this year, "to protect the conjugal definition of marriage, a definition that 41 states retain." They exhort conservatives not to be "duped into surrender" by arguments that same-sex marriage is inevitable.
The opinion piece is most striking – even baffling – for its assertion that: "The Supreme Court should let the people choose; and we should choose marriage, conjugal marriage." The people should choose because "nothing in the Constitution" favors either the conjugal or revisionist view of marriage. They no doubt aim here at the reliance by federal courts upon Romer v. Evans – and the Court’s Equal Protection jurisprudence – to strike down Section 3 of the Defense of Marriage Act, which defines marriage, for purposes of federal law, as between one man and one woman. They contend: "We can’t move one inch toward an answer simply by appealing to equality." Further, the conjugal view of marriage does not rest on "animus against any group" but instead "best fits our social practices and judgements about what marriage is."
As a family law scholar, I could offer a detailed account of how their view of "conjugal marriage’ does not best fit how contemporary family law – or constitutional law – regards marriage. Moreover, surveys of public opinion and patterns of family life also contradict their claims about social practices. However, my concern here is the authors’ prescription to the Supreme Court to "let the people choose." What does that mean in the context of the challenges brought by same-sex couples and by states themselves to the constitutionality of Section 3 of DOMA? If "the people" of a particular state choose to allow same-sex couples to marry (e.g., New York or Vermont), then how would the Court support their choice if it reverses lower federal courts and upholds DOMA?
Is the authors’ claim that the people should choose, instead, an argument that they did choose when their elected representatives in Congress enacted DOMA? And that, unless and until they choose again by Congress repealing DOMA, the federal law should maintain a one man-one woman definition of marriage even if a particular state defines marriage to include same-sex couples?
Congress enacted DOMA in 1996, warning of the threat of activist judges (at that time, in Hawaii) imposing same-sex marriage on the Nation. Lawmakers argued that DOMA would leave the matter of defining marriage to democratically-elected legislatures. And, in 2003, when Massachusetts’s highest court interpreted the state constitution to require marriage equality, conservatives again decried judicial activism. However, when state legislatures – without a judicial spur – enacted marriage equality laws, groups like the National Organization for Marriage (of which George is a leader) argued that "the people" should be allowed to choose through ballot initiatives. NOM fought hard in Maine, Maryland, and Washington for -- in their terms -- "conjugal marriage" and against "revisionist marriage." NOM leaders expressed confidence that every time "the people" had a chance at the polls, they had voted in favor of traditional, or conjugal, marriage. However, voters in Maryland, Maine, and Washington proved NOM wrong. And in Minnesota, they declined to enshrine a state DOMA in their constitution. (No wonder Girgis, Anderson, and George stress North Carolina. Their urging conservatives not to abandon support for conjugal marriage seems a direct response to some conservative commentary that it is time for the Republican party to rethink fighting marriage equality as well as its alliance with NOM.)
So, the pertinent question for the Supreme Court with respect to considering the many DOMA petitions before it is not best framed as "whether to hear challenges to laws defining marriage as the conjugal union of a man and a woman" or whether to "let the people choose." The more precise question is: when a state’s marriage law defines marriage to include the union of two members of the same sex, does Section 3 violate the guarantee of equal protection when it denies those couples lawfully married under state law significant federal benefits otherwise available to persons lawfully married under state law? To put it in terms of the recent ballot initiatives where voters chose marriage equality, when couples lawfully married under these laws confront DOMA’s failure to recognize their marriages, how would the Court be letting "the people" choose in upholding DOMA and denying those couples federal benefits?
In striking down Section 3 of DOMA, the First Circuit persuasively appealed to values of federalism and of different states reaching different resolutions on the definition of marriage. Acknowledging that "many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today," it further observed: "One virtue of federalism is that it permits this diversity of governance to be based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage."
Using a heightened scrutiny standard, the Second Circuit did not find appeals to a federally uniform definition of marriage to be a constitutionally persuasive reason for the federal government to refuse to recognize marriages lawful under state law. It noted that DOMA was an "unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity."
The petitions before the Supreme Court challenging the constitutionality of Section 3 of DOMA are not asking the Court to "impose" one view or the other of marriage upon the Nation. The petitions filed by the Bipartisan Legal Advisory Group, in defense of DOMA, are asking the Court to uphold a law that imposes one uniform definition of marriage at the federal level, even when a growing number of states have embraced marriage equality. It is important to be clear and precise about what is – and is not – at stake in the constitutional challenges to DOMA. Posted
by Linda McClain [link]