Dumb on DOMA

The decision of Eric Holder and the Obama administration represents a form of political courage, but of the wrong sort.  I have no desire whatsoever to defend DOMA as a matter of federal policy and would surely urge the Congress to repeal it.  My own libertarian instincts are that the government should not use its control over licenses or public funds to influence the way in which cash benefits and job opportunities are distributed throughout the country.  But at the same time, the DOJ’s invocation of a history of discrimination against gays and lesbians and call for a level of heightened scrutiny is not the way in which this question should be resolved.

To start from the beginning, this is what DOMA, passed by large bipartisan majorities in both Houses, says.

Section 2. Powers reserved to the states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of ‘marriage’ and ‘spouse’:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

DOMA reflects the universal past practice in virtually every place in the world at the time of its adoption. It is now declared unconstitutional under a heightened scrutiny standard, which comes from no where in particular, and which is not attached to any particular clause of the Constitution, given that the equal protection guarantees run, formally at least, only against the states.  Gay marriage is often compared with polygamy, and if the ban on the former is regarded as constitutionally required, the ban on the second should be more so.  Unlike the status of gay marriage, the practice of polygamy historically has been far more extensive, and no argument that it is subject to abuse could lead to a ban on polygamy, any more than it could lead to a ban on all marriage. 

What has happened here is that the President’s team thinks that it is possible to transform in fifteen years from a state of affairs where gay marriage was nowhere practiced, to one today in which no person could raise any rational objection to the practice that has historically never been adopted.  The presidential coup takes place at a time when the political forces in support of gay marriage have reached levels of strength that were thought unobtainable even in 1996.  There is no discrete and insular minority on this issue. 

Nor does the President note what it means to brand a practice as irrational.  To this day there are thoughtful people in religious groups that continue to hold fast against gay marriage, and their rights to determine what happens to their membership are necessarily impacted by this decision, for there is nothing in the curt statement from the Obama administration which explains why the Constitution should not be read to require the President of the Congress to impose obligations on these organizations to accept gay couples into their ranks. Orthodox Jews and Roman Catholics beware!

As to the legal effects of this decision, the choice of the President to surrender unilaterally (which could have been anticipated from his earlier actions) makes it unclear whether any private party has standing to defend DOMA.  It also leaves open the question of whether the President has taken care to see that the laws are faithfully executed if new administrative orders will now include gay couples in benefits that Congress has denied to them by statute.  This action therefore could lead to a constitutional crisis of some significance.  It would have been so much wiser to stay out of choppy waters by working first for a repeal of the statute.  But who can expect that level of prudence from this administration?

  1. AmishDude

    I’m not sure why religion comes up when we discuss marriage.

    The pre-Christian Romans, for instance, had marriage very similar to what we have today.  Many of our wedding traditions date back to then.  In fact, can somebody tell me where in the Bible it details how to conduct a wedding?

    Its purpose of marriage isn’t religious or romantic, it is to determine lineage and parentage and inheritance.  It isn’t to provide psychological validation.  In that case it would be a masturbatory exercise.

    Ironically.

    What Obama has done here is more simple to describe: He’s vetoed the bill after the fact.

  2. Tommy De Seno
    C

    Richard putting aside for a moment the issue of substantive due process and the court’s standard of review, what are your thoughts on the Full Faith and Credit Clause?

    Wouldn’t DOMA fail in that regard?

  3. 18th Century Whig

    This also brings up why Presidents – of both parties – believe they can suspend the laws as if they were Charles I.  

    President’s are constitutionally obligated to enforce the laws.  To put a different look to what AmishDude said: this is a selective enforcement of the law; enforcing only those laws he likes and refusing those he doesn’t. 

  4. Joseph Stanko
    Richard Epstein:  

    Nor does the President note what it means to brand a practice as irrational.  To this day there are thoughtful people in religious groups that continue to hold fast against gay marriage… Orthodox Jews and Roman Catholics beware!

    Along those lines, this part especially troubles me: “The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”  Note that he’s not merely saying expressions of moral disapproval sometimes cloak an underlying bigotry and animus, he simply equates them.  Moral disapproval is “precisely” a “kind of stereotype-based thinking and animus,” nothing more.

  5. LowcountryJoe

    I’m not opposed to same-sex couple forming a union with one another but can only see a slippery slope ahead with loosening the definition of marriage.  There are Social Security survivorship benefits at stake here and if non-traditional unions are going to be called ‘marriages’ then what will be next? 

    The system is broke enough and won’t need a couple challenging the legal system to hear a case on why an incestuous couple [with a terminally ill family member] should be allowed to marry while the clear motive is to get a government check.

    Doubt that could happen?  There’s sick enough people who’ll do just that and will have the legal precedent to do just that.

  6. Joseph Stanko
    Tommy De Seno: Richard putting aside for a moment the issue of substantive due process and the court’s standard of review, what are your thoughts on the Full Faith and Credit Clause?

    Wouldn’t DOMA fail in that regard? · Feb 23 at 1:27pm

    Actually, I just noticed that Holder says Section 3 is unconstitutional, he never mentions Section 2.  In other words, in his view it’s perfectly constitutional for one state to refuse to recognize another state’s marriage laws, but it violates the constitution for the federal government to define marriage as “a legal union between one man and one woman” for the purpose of federal law and benefits.

  7. AmishDude

    Another thing I don’t get.  What’s the discrimination thing?

    I’m not married.  I never was and I never will be.  There are many reasons not to be married.  Where is the Holder Justice department to defend my rights?

    And what if someone wants to marry but the other party doesn’t? Should the party that wants to marry still get these sweet, sweet benefits of marriage anyway?

  8. Mel Foil

    Marriage is whatever state law says it is, but state law is whatever our black-robed kings, queens, and princes tell us it is. “Prohibited means mandatory?” “Yes, my Lord. Your wish is my command.”

  9. r r
    Richard Epstein:  Orthodox Jews and Roman Catholics beware!

    Indeed.

  10. Charles Mark

    Suppose there’s a Republican president in 2012 with a Democratic Congress.Could the President declare that Obamacare is unconstitutional and that the DoJ should not defend challenges to it’s constitutionality in federal courts?

  11. Tommy De Seno
    C

     One more question for Prof. Epstein:

    AG Holder has concluded that on the substantive due process issue, the appropriate standard of judicial review is “substantially related to an important government objective.”  That’s the intermediate test.

    Does that mean the President is still taking the position that gay marriage is not a “fundamental right”  (otherwise Holder would have used the “strict scrutiny” standard of ”narrowly tailored to protect a compelling state interest”)?

    What has me puzzled is that Holder takes the time to go through the tests of history of discrimination, powerlessness, etc.  Those are the tests for a “suspect class” which would raise the judicial review all the way up strict scrutiny.

    What am I missing?  Why the strict scrutiny analysis if he is conceding the intermediate standard of review of “substantially related to an important government objective?”

  12. Tommy De Seno
    C
    Charles Mark: Suppose there’s a Republican president in 2012 with a Democratic Congress.Could the President declare that Obamacare is unconstitutional and that the DoJ should not defend challenges to it’s constitutionality in federal courts? · Feb 23 at 2:03pm

    Interesting. 

  13. Dan Holmes
    AmishDude: Another thing I don’t get.  What’s the discrimination thing?

    I’m not married.  I never was and I never will be.  There are many reasons not to be married.  Where is the Holder Justice department to defend my rights?

    And what if someone wants to marry but the other party doesn’t? Should the party that wants to marry still get these sweet, sweet benefits of marriage anyway? · Feb 23 at 1:50pm

    As some radio talkers (Boortz, for one) like to say, “A gay person has the same rights, including the right to marry, as a straight person.”  

    I’m of the somewhat cynical mind that gay couples want gay marriage legalized primarily for the same tax and inheritance benefits that are now given to conventionally married U.S. couples.

  14. raycon and lindacon
    Charles Mark: Suppose there’s a Republican president in 2012 with a Democratic Congress.Could the President declare that Obamacare is unconstitutional and that the DoJ should not defend challenges to it’s constitutionality in federal courts? · Feb 23 at 2:03pm

    If that future president were as lawless as the present administration, who’s to stop them.  The famous Jackson quote about the courts lack of enforcement powers comes to mind.  A congress and sitting president can no longer make laws with the assurance the the next constitutional officer to occupy the office will carry out his obligations. 

    The old fashioned word is TYRANNY.

  15. Charles Mark

    Is it not an inverted form of rule by decree?

  16. KC Mulville
    AmishDude: Another thing I don’t get.  What’s the discrimination thing?

    The argument is that gays are citizens, so they’re entitled to do whatever other citizens are allowed to do. But that’s simplistic.

    • Marriage isn’t only about what individuals are allowed to do. Marriage also requires society’s consent to treat the spouses as one, with joint and several legal responsibility. If all you want to do is live together, go ahead, no one’s stopping you. Marriage, however, seeks society’s recognition and consent.

    The consent of society is what’s missing here. 

    By treating it as a civil right, gay marriage advocates claim that the rest of society owes them our approval, sanction, and consent. Well, to be blunt, my approval is mine to give. No one has a right to demand it of me. Until as recently as the passage of DOMA, in fact, our society refused to approve. California’s Prop8 refused to approve.

    Now the lawyers (David Boies, Ted Olsen, Eric Holder, etc.) say we don’t have any right to disapprove? Society’s consent is not required?

    Then it isn’t marriage. 

  17. Michael Tee
    Matthew Osborn:  Welcome to the rule of men, not law. · Feb 23 at 10:56am

    Exactly. People prefer the Constitution to hold their preferred policy decisions within them when in fact, the Constitution is quite silent.
    Tommy De Seno: Richard putting aside for a moment the issue of substantive due process and the court’s standard of review, what are your thoughts on the Full Faith and Credit Clause?

    Wouldn’t DOMA fail in that regard? · Feb 23 at 1:27pm

    Did you ever hear of the Parental Kidnapping Prevention Act (28 U.S.C.A. § 1738A)? The Violence Against Women Act (Pub. L. No. 103-322 [codified in scattered sections of 8 U.S.C.A., 18 U.S.C.A., 42 U.S.C.A.])?

  18. Richard Epstein
    C
    Tommy De Seno: Richard putting aside for a moment the issue of substantive due process and the court’s standard of review, what are your thoughts on the Full Faith and Credit Clause?

    Wouldn’t DOMA fail in that regard? · Feb 23 at 1:27pm

    This is a real issue. The usual view is that a state could take into account its own important public policy objectives in deciding whether or not to recognize certain acts in other states.  That was the understanding before the gay rights issue started to heat up, and DOMA was thought to be a corrective against that trend.  But if in fact we have some heightened scrutiny that applies to make DOMA unconstitutional, there is a question whether that view requires states to back down on their now-unconstitutional public policy objective.  This would not happen without a huge fight, because the President is taking his own position, which is not binding on any one else, at least yet.  So the situation seems to lead to fragmented authority, at least until the court gets involved, which means that the Prop 8 case takes on a new significance.

  19. AmishDude
    Dan Holmes

    AmishDude: Another thing I don’t get.  What’s the discrimination thing?

    I’m not married.  I never was and I never will be.  There are many reasons not to be married.  Where is the Holder Justice department to defend my rights?

    And what if someone wants to marry but the other party doesn’t? Should the party that wants to marry still get these sweet, sweet benefits of marriage anyway? · Feb 23 at 1:50pm

    As some radio talkers (Boortz, for one) like to say, “A gay person has the same rights, including the right to marry, as a straight person.”  

    I’m of the somewhat cynical mind that gay couples want gay marriage legalized primarily for the same tax and inheritance benefits that are now given to conventionally married U.S. couples. · Feb 23 at 2:26pm

    Clearly the single are being discriminated against and we need recompense.

    I’m more cynical.  Using the discrimination argument says that it’s all about psychological validation.

  20. Richard Epstein
    C
    Tommy De Seno:  AG Holder has concluded that on the substantive due process issue, the appropriate standard of judicial review is “substantially related to an important government objective.”  That’s the intermediate test.

    Does that mean the President is still taking the position that gay marriage is not a “fundamental right”  (otherwise Holder would have used the “strict scrutiny” standard of ”narrowly tailored to protect a compelling state interest”)?

    What has me puzzled is that Holder takes the time to go through the tests of history of discrimination, powerlessness.  Those are the tests for a “suspect class” which would raise the judicial review all the way up strict scrutiny.

    What am I missing?  Why the strict scrutiny analysis if he is conceding the intermediate standard of review of “substantially related to an important government objective?” 

    The levels of scrutiny are manipulable, so that one can talk the language of intermediate scrutiny and still end up with a stealth strict scrutiny.  The decision here was to soft pedal the standard, but then to act as though it were strict scrutiny.  The Administration wants to have some cover for its decision, so it moves only one step up the scale, not two.