Sunday, December 09, 2012
DOMA & Federalism
Beware of liberals making federalism arguments.
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.
But, that only starts the conversation.
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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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."Post a Comment
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. LOL排位赛代练 cheap lol boosting Cheap Fifa 15 Coins Elo boost