Is It Right to Strike Down the Defense of Marriage Act?
The Massachusetts decisions striking down the Defense of Marriage Act seem wrong, regardless of whether you support gay marriage or not. Personally, I don't think that the Constitution authorizes the federal courts to require all states to guarantee same sex marriage. The Constitution's normal path for change on moral and social issues is that the people of the states, one-by-one, can decide for themselves whether to extend marriage to gay couples. The Constitution gives each state the right to make different policy choices on the most basic life and death decisions, such as the death penalty or the right to die. Gay marriage should be decided the same way (and will lead to a stronger national consensus, no matter what results).
Instead, Judge Touro decided that gay marriage should follow the path of Roe v. Wade, which attempted to impose an immediate national solution on to the question of abortion. He based his decision on two claims: a) that the federal government cannot define marriage at odds with state law; and b) that the law was purely irrational. The first is certainly wrong, the second likely wrong. The federal government surely has the right to define marriage and a great deal of other legal arrangements as it likes when it decides how to spend money, whether to give tax breaks, and so on. It has even refused to allow territories, like Utah, to enter the Union unless it defined marriage not to include polygamy, for example. The federal government can give tax breaks only to heterosexual married couples, and a state can choose to define marriage as including gay couples -- neither intrudes on the other's constitutional authorities.
On the second point, if a court can overturn the government's decision that it is purely irrational for a state to encourage heterosexual marriage, then a great deal of other choices are going to be under question -- and I have a hard time seeing the current Supreme Court wanting to turn the federal judiciary into a third house of Congress to review all of these policy decisions. For example, if it is irrational to favor heterosexual marriage because Congress believes this will lead to more children, higher birth rates, more stable marriages, and the like, what is to prevent courts from overturning programs that favor married versus unmarried couples. Or couples over singles. Or couples over groups. The Massachusetts judge's approach would mean that laws banning adultery or group marriages are equally unconstitutional. My preference would be that the federal government not get into any sort of social planning by giving out the billions of dollars that it does for a wide variety of entitlement programs -- I think the federal Constitution was not originally understood to place the federal government in this kind of active social engineering role. But if the courts are going to read the Constitution to allow Congress to intrude into education, family, law, and so on, then the government is going to have the ability to make these kinds of judgments.
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May '10
Re: Is It Right to Strike Down the Defense of Marriage Act?
Nothing to add here other than that even some gay marriage supporters are dubious of the ruling (http://bit.ly/c53QpG), and predict it'll be overturned. "As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power."
Re: Is It Right to Strike Down the Defense of Marriage Act?
Professor Yoo, a few quick questions please:
If the Judge had reached his decision on a pure states rights basis, wouldn’t that have cemented the right of states to ban same sex marriage? Or for that matter, wouldn’t states contesting the individual health insurance mandate have had more ammunition in their fight? Could this possibility be why the judge chose another avenue?
Second, was his finding that the law was purely irrational consistent with the rational basis test, i.e. that there was not a single good thing to come from this law? As I understand it, the rational basis test says that if a law has a thousand bad results, but just one good result, it passes the test. Of course, that isn’t very rational, so I’m wondering how the judge put that square peg in this round hole.
Lastly, and this dovetails with my first question, if a finding based on 10th Amendment grounds had been made, wouldn’t that open a Pandora’s Box of suits challenging the federal government’s authority on various issues in addition to the health care mandate, running the risk of a return to Constitutional governance?
May '10
Re: Is It Right to Strike Down the Defense of Marriage Act?
Professor Yoo - Further to Dave's questions, how do you think the First Circuit will handle this appeal? Is the Supreme Court going to have to eventually take this one on?
Jul '10
Re: Is It Right to Strike Down the Defense of Marriage Act?
And is there anywhere in this even a shred of logic to defend against the obvious charge of legislating from the bench?
May '10
Re: Is It Right to Strike Down the Defense of Marriage Act?
It will be interesting when this attempt to legally equate gay marriage to racial discrimination as a civil rights issue is finally bluntly addressed. Our African American fellow-citizens are not impressed.
Re: Is It Right to Strike Down the Defense of Marriage Act?
I hope I'll not be thought of in lesser terms for being Ricochet's first contrarian to Professor Yoo, so I'll point out first that it is not my opinion that compels me, but a reading of the Judge Tauro's decisions.
Professor Yoo, every Justice, including Justice Scalia, has found that defining eligibility for marriage is a state power. Thus, I'm going to require a citation to accept your premise that, "The federal government surely has the right to define marriage...as it likes when it decides how to spend money..."
Judge Tauro laid out the case that the 1100+ federal benefits involving marriage, including those involving the spending of money, always involved accepting each state's definition of marriage even when the states differed in their definitions. The reason: There is no federal power to define marriage, and the 10 Amendment reserve it to the states.
Can you set forth a citation for your contrary premise?
Re: Is It Right to Strike Down the Defense of Marriage Act?
Dave Carter asks: If the Judge had reached his decision on a pure states rights basis, wouldn’t that have cemented the right of states to ban same sex marriage?
That is a great point, one I had been thinking about too. It underscores why the Massachusetts decision is not really one that protects federalism. If the Judge had really wanted to respect state sovereignty, he would have upheld, rather than struck down, the Defense of Marriage Act. Here's why.
One of the purposes of DOMA was to protect state definitions of marriage. The motivating concern of the law was that the decision on gay marriage in one state -- say Massachusetts or Hawaii or California -- would require other states to recognize those gay marriages. People would go to those states with the least regulation, here states that allow gay marriages, and then return home and demand recognition of their marriage. Judge Touro's decision attacks federalism because it rejects any government's rational basis for distinguishing between heterosexual and homosexual marriages -- effectively overriding any state's refusal to grant gay marriages, though imposed by the courts rather than the ballot box.
Re: Is It Right to Strike Down the Defense of Marriage Act?
I find it hard to believe that the First Circuit would uphold the federalism aspect of the Massachusetts' court ruling. The decision on rational basis is much harder to predict. The court said that the government could have no rational reason to ban gay marriages except the irrational dislike of gays. The Supreme Court used this ground when it struck down a Texas law criminalizing sodomy (Lawrence v. Texas). I think Lawrence v. Texas was incorrectly decided, but given that it is the Supreme Court's last word, the First Circuit could extend the idea to gay marriage -- even though the Court suggested that its reasoning would not reach marriage, which is why Justice Scalia in dissent attacked the majority for having no principles. If the First Circuit were to uphold the lower court, the Supreme Court would almost certainly take the case -- it will usually hear any case where a lower court has struck down an act of Congress.
Re: Is It Right to Strike Down the Defense of Marriage Act?
I quite agree. But I don't think DOMA does this. Congress would have violated the 10th Amendment if it had passed a law that required states to change their own laws on marriage to conform with federal standards. But it hasn't quite done that, despite Judge Touro's claims to the contrary. Massachusetts is a good example. Massachusetts, due to the decision of its Supreme Court, allows gay marriage. DOMA does not interfere with that decision -- it is still up to the state of Massachusetts whether to bless gay marriages in its state, as it does today.
Instead, DOMA says that for purposes of federal programs, marriage is only between a man and a woman. So if someone wants to apply for federal (not state) benefits for their spouse, that spouse must be of a different gender. The federal government does this all the time; in fact, it must make such classifications whenever it gives out money, or makes something a crime, etc. Massachusetts could borrow state categories when it runs a program, but it need not.
Re: Is It Right to Strike Down the Defense of Marriage Act?
Prof Yoo,
To tell the states "you may participate in our program so long as you define marriage they way we do" certainly means the Federal gevernment has defined marriage. Without such a definition, the states would not know if they are in compliance.
So I guess we disagree that the Federal government defined marriage in DOMA.
I rely upon this very language from DOMA that they have:
"...the word “marriage” means only a legal union between one man and one woman as husband and wife..."
To deny states money based upon non-complience with the new federal definition of marriage leads to the equal protection problem, which Judge Tauro rightly ruled unconstitutional in the Gill case.
Re: Is It Right to Strike Down the Defense of Marriage Act?
Justified Right:
To tell the states "you may participate in our program so long as you define marriage they way we do" certainly means the Federal gevernment has defined marriage. Without such a definition, the states would not know if they are in compliance.
I am willing to be convinced that I am misreading the Massachusetts case, but I don't think I am. The case doesn't say that DOMA requires Massachusetts to change how the state defines marriage (and it couldn't, because DOMA doesn't). Massachusetts is still free to define marriage as it sees fit -- which it does to include heterosexual and homosexual couples. DOMA does not even say to Massachusetts: here is a chunk of change; you get it if you change your definition of marriage (which the federal government does often in other areas).
Instead, if you look at the facts of Gill, this was a case where plaintiffs who happened to live in Massachusetts wanted the federal government to give benefits (access to the federal health program, etc) to their same-sex spouses. This doesn't attempt to coerce Massachusetts to change its law, or to override Massachusetts' law.
Re: Is It Right to Strike Down the Defense of Marriage Act?
Dave Carter: Professor Yoo, a few quick questions please:
Second, was his finding that the law was purely irrational consistent with the rational basis test, i.e. that there was not a single good thing to come from this law? As I understand it, the rational basis test says that if a law has a thousand bad results, but just one good result, it passes the test. Of course, that isn’t very rational, so I’m wondering how the judge put that square peg in this round hole.
I agree that the judge's decision is hard to square with the actual operation of the rational basis test -- which not only gives the legislature the benefit of the doubt, but even requires courts to hypothesize about what could have been the legislature's reason for its decision. Congress need not be right, only that the connection between the legislative means and the goal be something that a legislator could have rationally believed were connected. But the only two cases since the New Deal where the Supreme Court has found a law to fail this standard are the gay rights cases.
Re: Is It Right to Strike Down the Defense of Marriage Act?
There is an interesting issue here on the rational basis test, one that involves Kagan and Obama. Recall that Obama said during the campaign that he did not favor the legalization of gay marriage. Yet, in defending DOMA, the Justice Department refused to support the law on the rational basis grounds given by Congress: preserving the institution of marriage, encouraging procreation and child-rearing, and so on. This allowed the court to summarily dismiss the actual grounds for the law. The Obama administration did not put forward it's strongest arguments, and it may even be thinking of not appealing -- which raises the question whether Obama is keeping his campaign promise. It also may create a problem for Kagan, who would have approved the decision to defend DOMA on weaker grounds.
May '10
Re: Is It Right to Strike Down the Defense of Marriage Act?
(I know I'll regret entering this fray by disagreeing with Professor Yoo, but here goes.) To suggest that excluding a set of individuals that are already co-habitating from benefiting from the institution that encourages commitment and childrearing is the irrational argument. Anyone that knows gay families raising kids can see this quite clearly in point of fact. Marriage is not a requirement for domestic tranquility but it encourages it, so denying this constructive institution is the less rational argument. The reality of this law is that it tries to assert a positive, but this is only a veneer for an attempt to enforce a negative. The law only makes sense if you believe homosexuality is wrong, and this is a fundamentally a religious argument.
May '10
Re: Is It Right to Strike Down the Defense of Marriage Act?
John Yoo
Justified Right:
To tell the states "you may participate in our program so long as you define marriage they way we do" certainly means the Federal gevernment has defined marriage. Without such a definition, the states would not know if they are in compliance.
I am willing to be convinced that I am misreading the Massachusetts case, but I don't think I am. The case doesn't say that DOMA requires Massachusetts to change how the state defines marriage (and it couldn't, because DOMA doesn't). · Jul 12 at 2:35pm
It seems that the federal government is acting much like a 51st state. Would that be a fair appraisal?
Since the subject was last raised, I've accepted the view that marriage can be defined by the states in spite of such definitions' interstate and national consequences. But I agree with Justified Right that the federal government indeed has its own definition of marriage. It was forced into a definition by involving marriage in the federal tax code. I wonder what else might force the federal hand if a federal income tax did not exist.
Voters would certainly still consider it a national concern.
Re: Is It Right to Strike Down the Defense of Marriage Act?
Prof Yoo:
While you are correct that the Federal government has not offered cash for Massachusetts to change its definition of Marriage, it has imposed a penalty for not doing so - they will recoup millions of dollars in military cemetery funding should Massachusetts bury the spouse of a gay soldier.
Penalty is more compulsory than benefit.
Re: Is It Right to Strike Down the Defense of Marriage Act?
Aaron Miller
But I agree with Justified Right that the federal government indeed has its own definition of marriage. It was forced into a definition by involving marriage in the federal tax code.
Here's a different way of understanding the states rights versus federal centralization of marriage point. Suppose the federal government were to say that it would -- as of now -- start considering gay civil unions and marriages to be marriages for federal health benefits or filing income taxes. Would this violate the rights of those states that allowed marriage only for heterosexual couples? I would say not -- those states could still allow marriage to those it wished. The federal government would be granting benefits to marriage, as it defines it -- in this sense Aaron Miller is right. But the federal government and the states can have different definitions of marriage -- my hypothetical law would not override the state definition.
That is what is wrong about Judge Tauro's decision -- he seeks to impose a uniform definition, even while he accuses DOMA of doing exactly that.
Re: Is It Right to Strike Down the Defense of Marriage Act?
Trace Urdan
To suggest that excluding a set of individuals that are already co-habitating from benefiting from the institution that encourages commitment and childrearing is the irrational argument. Anyone that knows gay families raising kids can see this quite clearly in point of fact.
It is important here to distinguish between law and policy. As a legal matter, what matters -- at least I think so -- is whether Congress could believe that maintaining the distinction between these two types of unions would advance its goals. It is, as you say, almost a factual question: is there any evidence that gay marriages reduces the rate of, say, the length or number of marriage overall, or the number of children produced? The court doesn't say these are illegitimate goals, so we have to ask whether DOMA might advance these goals. And this, I might add, is a tougher test than what is applied in the economic area, where the Court has upheld laws that run exactly counter to what we know about markets (limiting the number of eyeglass makers, the Court has thought, could lead to better eye care) and not required proof for a regulation.
May '10
Re: Is It Right to Strike Down the Defense of Marriage Act?
Prof. Yoo -- In another lifetime I should like to be a student in your class. Thank you for the response. It makes perfect sense. After all, if every Federal law had to be wise in order to stand up in court it seems our whole system of jurisprudence would collapse on itself!
May '10
Re: Is It Right to Strike Down the Defense of Marriage Act?
Trace Urdan
The law only makes sense if you believe homosexuality is wrong, and this is a fundamentally a religious argument. · Jul 12 at 3:26pm
Trace, the first half may be true, but the second half certainly isn't. It's a fundamentally moral argument, but not a fundamentally religious argument. (Although I'm not sure why it would be relevant that it were a "fundamentally religious" argument, if it were...) You might think Finnis and George are wrong, but they're hardly irrational.