Appeals Court Strikes Down DOMA's Marriage Definition
Same-sex marriage took one more step in its inevitable trip to the Supreme Court yesterday. A divided panel of the Second Circuit ruled that Section 3 of the federal Defense of Marriage Act, which defines “marriage” for purposes of provisions of federal law as “only a legal union between one man and one woman as husband and wife,” “violates equal protection.” The case is Windsor v. United States.
I have long been skeptical of Section 3 on Tenth Amendment grounds. I think that states have the right to define marriage as they see fit, and I'm concerned about a federal law that uses the power of federal benefits to force states' hands (on this point, I respectfully disagree with Ed Whelan, who cogently sums up his position in his analysis of Windsor at NRO).
The problem with Windsor is that the Court does not rely on the Tenth Amendment, it relies on the Equal Protection Clause. If DOMA is a violation of equal protection, then it would be equally unconstitutional for states to define marriage as the union of one man and one woman. Decisions like this (and of course Judge Vaughn Walker's decision on Prop 8) distort the Constitution by imposing on the nation a newfangled "right" to gay marriage.
The majority opinion in Windsor holds that DOMA must be subjected to heightened scrutiny because homosexuals “are a politically powerless minority.” So powerless, I suppose, that the President refused to incur their wrath by defending DOMA in court.
But even under heightened scrutiny, laws will be upheld provided they incur a significant government interest (the court here employed so-called "intermediate scrutiny"). As Whelan points out in his analysis, the majority "breezily concludes that section 3 of DOMA doesn’t advance the goal of encouraging responsible procreation." If that conclusion becomes embedded in our constitutional law, democratically-enacted marriage laws in the vast majority of states will have to be cast aside.
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Comments:
Oct '12
Re: Appeals Court Strikes Down DOMA's Marriage Definition
Why isn't DOMA unconstitutional under the 'Full faith and credit' clause of the consititution. Texas can not ignore the marriage certificate of a couple married in another state, just because the marriage would not be legal in Texas? I have always thought DOMA was unconstitutional, not because of the equal protection, but it violated the 'Full faith and credit' clause (Artcle IV, section 1).
May '10
Re: Appeals Court Strikes Down DOMA's Marriage Definition
Adam, how do you prevent abuse of a traditional state that chooses not to recognize the PC definition via the Full Faith and Credit clause? The DOMA was originally passed precisely to prevent one state from inflicting its views on 49, wasn't it?
Dec '10
Re: Appeals Court Strikes Down DOMA's Marriage Definition
What they said
Apr '11
Re: Appeals Court Strikes Down DOMA's Marriage Definition
There's a public policy exception to the FF&C clause, which has always extended to marriage capacity (over matters of age, consent, bigamy/ polygamy, race, etc.) This extends back beyond the founding of the Constitution; common law conflict of laws says that marriages are valid when they were procedurally valid in the jurisdiction that they were celebrated in and substantively valid in the jurisdiction of the applicable law.
DOMA was not, in that respect, necessary as a matter of black letter law. This case, which decides that the SCOTUS would have decided in Romer that the unusual treatment of the rational basis test was unnecessary if they'd thought about it, and that they will hence ignore Romer, is a helpful explanation of why ancient legal principles had to be reiterated.
Oct '12
Re: Appeals Court Strikes Down DOMA's Marriage Definition
JamesofEngland: You state, "There's a public policy exception to the FF&C clause, which has always extended to marriage capacity (over matters of age, consent, bigamy/ polygamy, race, etc.) This extends back beyond the founding of the Constitution; common law conflict of laws says that marriages are valid when they were procedurally valid in the jurisdiction that they were celebrated in and substantively valid in the jurisdiction of the applicable law."
Doesn't DOMA allow a state NOT to recognize a legal marriage in another state because it was between same sex partners? So DOMA would be a violation of that common law and the constitution?
Re: Appeals Court Strikes Down DOMA's Marriage Definition
Foxman
What they said · 1 hour ago
Guys, the Windsor case does not involve the state recognition issue. It concerns only Section 3 of DOMA that creates a federal definition of marriage for the purposes of eligibility for federal benefits.
Re: Appeals Court Strikes Down DOMA's Marriage Definition
The part of DOMA that is potentially at odds with FF&C is section 2. That section was not at issue. I haven't studied the FF&C issue to be honest. I'm interested in JoE's point about a public policy exception; if that is correct, my gut reaction is that each state should have the power to decide for itself whether to invoke the public policy exception so as to refuse to recognize same-sex marriages.
However, if the Windsor Court's equal protection analysis is upheld by SCOTUS, states will never have the opportunity to make that decision. They will be forced to accommodate this new "right."
Apr '11
Re: Appeals Court Strikes Down DOMA's Marriage Definition
Joseph Paquette: JamesofEngland: You state, "There's a public policy exception to the FF&C clause, which has always extended to marriage capacity (over matters of age, consent, bigamy/ polygamy, race, etc.)
.......
Doesn't DOMA allow a state NOT to recognize a legal marriage in another state because it was between same sex partners? So DOMA would be a violation of that common law and the constitution? ·
My sentence was ambiguous; the exception includes marriage definitions. DOMA codifies that exception as applied to gender; race and number issues are currently unimportant, as all 50 states + federal laws are the same (only 2 people, but of any race), but the common law, generally codified by states, still runs with underage and consanguineous spouses.
Adam is right that if the statute was overturned on the basis claimed, the common law would be gone with it. Honestly, if this case was correctly decided, I don't see how we avoid a full SSM Roe v. Wade, a 50 state law passed by the judiciary. If a law codifying Lincoln's definition of marriage is against the 14th Amendment, then surely no pre-Goodridge state family law is valid. Do you agree, Adam?
Aug '10
Re: Appeals Court Strikes Down DOMA's Marriage Definition
Adam Freedman:
The majority opinion inWindsorholds that DOMA must be subjected to heightened scrutiny because homosexuals “are a politically powerless minority.”
Adam, is this a normal test for heightened scrutiny? Because it seems completely impossible to measure, or make any kind of judgement call to measure "political power".
We now have a black President. Does that mean blacks now have sufficient political power to not trigger heightened scrutiny for laws regarding race?
Roughly 1 in 6 Americans are now considered Hispanic. Is that a significant enough voting bloc to be politically powerful?
Apr '11
Re: Appeals Court Strikes Down DOMA's Marriage Definition
BlueAnt
Adam Freedman:
The majority opinion inWindsorholds that DOMA must be subjected to heightened scrutiny because homosexuals “are a politically powerless minority.”
Adam, is this anormaltest for heightened scrutiny? Because it seems completely impossible to measure, or make any kind of judgement call to measure "political power".
We now have a black President. Does that mean blacks now have sufficient political power to not trigger heightened scrutiny for laws regarding race?
Roughly 1 in 6 Americans are now considered Hispanic. Is that a significant enough voting bloc to be politically powerful? · 1 hour ago
Normally, courts accept the classifications handed down by the SCOTUS (eg. race: strict, gender: intermediate, sexuality; rational basis). If you're faced with a novel group, though, then this would be part of the normal analysis, yes. I agree that the political powerlessness of gays is not obvious, but since this is a subjective argument, it seems like the least of the opinion's problems to me.