Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The oral argument this past Wednesday in United States v. Windsor demonstrated (not surprisingly) that the justices, even those inclined to rule in Edith Windsor’s favor, are deeply concerned about issuing a decision that does too much too soon. By the end of the argument it was clear that neither of the two grounds—federalism and equal protection—offered up to the Court as a basis for invalidating section 3 of DOMA readily provides a principled basis on which to rule for Edith Windsor while avoiding the problem of a ruling with sweeping and unpredictable consequences. There is, however, a viable solution that was overlooked in the argument: a modest ruling from the Court on Edith Windsor’s actual claim.
First, my thoughts on the problems the Court in Windsor faces. The federalism argument—Congress somehow lacks power to define marriage for purposes of federal law/Congress should not be able to interfere in an area of traditional state concern and turn state-sanctioned marriages into “skim-milk marriages”–is riddled with problems. The most obvious weakness is that this argument is not really what it sounds like. It is not actually an argument about DOMA’s federal marriage definition. Instead, the argument is really a complaint about the myriad ways in which the federal government has come to exercise power with respect to marriages. For the only reason the way in which Congress has defined marriage—in section 3 of DOMA--matters is that so many (perhaps most) of the governmental goodies that marriage couples today receive come not from state governments but from Washington. If states were in charge of social security programs, conferring immigration benefits, regulating hospital visits, assigning military benefits, doing most government spending (and therefore most tax collecting) and so on and so forth, a federal marriage definition would be of little consequence.
Perhaps all of these programs should be run by the states and not by the federal government, all of the goodies given out by state government and not by Washington, but that isn’t the issue before the Court in Windsor. And therein lies the defect with the federalism objection: the argument is, in essence, a plea to close the barn door after the horse has already escaped. Once the huge array of governmental functions—many of which were historically performed by states—get shifted up from the states to the federal government, it is very hard to see how the states could retain a veto on the way in which Congress goes about exercising the power it has been given. In other words, if you don’t want Congress limiting social security survivor benefits to heterosexual couples, then you shouldn’t have Congress running social security in the first place. More plainly, the federalism argument falls apart in the modern era of the massive federal administrative state because the premise of the argument—marriage is a domain of state government—simply is not true.
The equal protection argument Edith Windsor (joined by the Obama Administration) makes to the Court is also deeply problematic. Here again, Windsor is not really complaining about section 3 of DOMA. She isn’t really saying that a federal definition of marriage violates the equal protection principles of the Fifth Amendment. (Nor could she: a definition alone doesn’t impose any injury.) Instead, Windsor is complaining that the actual equal protection violation is the differential treatment that results under some 1,100 federal laws as a result of DOMA’s prescribed definition. Here, though, there would seem to be a basic question of Edith Windsor’s standing. Windsor herself asserts an injury only with respect to a single federal law (read via section 3 of DOMA): the provision of the federal tax code that defines her as not married, and therefore subject to inheritance tax on property left to her by the person recognized under New York law to be her spouse. Fair enough. But it is hard to see how Windsor has standing to complain about the other 1,099 federal laws DOMA implicates. More to the point, it would be rash, perhaps foolhardy, for the Supreme Court to rule in Windsor’s tax case on whether all of those other laws are or are not consistent with equal protection. Under whatever standard of review the Court chooses to apply with respect to sexual orientation classifications, constitutional review is necessarily context specific. Perhaps, for instance, differential treatment for tax purposes survives review but that outcome wouldn’t dictate necessarily the result in assessing the constitutionality of other federal laws that distinguish among marriages. In the immigration context, for example, a court might conclude that there are more weighty governmental interests in play than exist in the tax context such that a equal protection challenge is weaker. (Note in this regard that the federal government already does not simply defer to states with respect to spousal immigrant petitions but instead it subjects "marriages" to careful review to determine if they are sufficiently genuine for federal purposes.)
The problem, then, is that Windsor’s equal protection case is—to use another equine metaphor—a Trojan horse. Her tax dispute is being used to seek to invalidate more than a thousand federal statutes (as currently read via DOMA) without any sort of defense of those individual statutes ever being made and anything remotely resembling the usual sort of contextual analysis that occurs in assessing whether the federal government has violated the Constitution. Contrast Windsor's approach with Brown v. Board of Education: the Court in Brown invalidated separate but equal public schools, but it took (appropriately) additional rounds of litigation before other separate but equal facilities (transportation, etc.) were also deemed invalid.
(Perhaps an objection to my analysis is that were the Court to strike down section 3 of DOMA, Congress could always amend specific laws to define marriage in a way that excludes same-sex marriages. But that approach isn't sound because it reverses entirely our usual presumption that federal laws are constitutional unless demonstrated to be otherwise.)
Here, then, is the small issue the Court should decide in United States v. Windsor: Does Congress’s limitation of the inheritance tax exemption provision to opposite-sex married couples comply with the equal protection principles of the Fifth Amendment? No need in answering that question to enter the vast federalism minefield. No need to decide a giant equal protection question that implicates more than one thousand federal statutes as well as myriad state law questions (including, yes, marriage itself).
The Court in Windsor should do what it always does: decide one case at a time. This case, this time, presents an issue of the constitutionality of the federal law of inheritance tax.