The DOMA Travesty: A National Rule Masquerading as Federalism

 

After making us wait so long for a decision, at least SCOTUS could have delivered a coherent opinion on the Defense of Marriage Act. Instead, the majority’s opinion in United States v. Windsor is an incoherent mess. Justice Kennedy, joined by the four liberal justices held that DOMA “violates basic due process and equal protection principles applicable to the Federal Government.”

The bottom line is that this decision creates a national mandate in favor of same-sex marriages. The majority attempts to deny this, insisting that its decision is limited only to the application of DOMA, but the majority’s reasoning must lead inexorably to the destruction of all traditional marriage laws.

Why? First of all, the Court held that DOMA violates Equal Protection by singling out a particular kind of couple for unequal treatment. Keep in mind that the Equal Protection clause of the 14th Amendment does not even apply to the federal government (this led the majority to do some fancy footwork about how the Fifth Amendment’s due process clause was somehow expanded by the Equal Protection Clause.) 

We have a mixture here of equal protection and substantive due process — not coincidentally, the same combination used by Vaughn Walker to strike down California’s Proposition 8.  And, like Judge Walker, Kennedy et al. concluded that DOMA could only have been motivated by bigotry toward homosexuals. There is no earthly way in which plaintiffs will not use the Court’s decision to challenge each and every traditional marriage law in the 30-odd states that still have them.

One of the great ironies here is that the Court’s opinion masquerades as a federalism decision, but will end up usurping the power of states to regulate marriage as they see fit. The majority opens up with a seven-page discussion of federalism that ends up being a mere throat-clearing exercise. In the end, the Court does not conclude that DOMA violates federalism, but rather declares a new federal rule against traditional marriage that will end up forcing the states’ hands.

As I’ve argued before, the idea that DOMA violates the Tenth Amendment is fatally-flawed, and led many conservatives down the anti-DOMA path (wrongly, I believe).  The intent of DOMA was to protect federalism by allowing states to regulate marriage without having the pro-SSM states impose their additional costs on the traditional states. The decision striking down DOMA will lead — soon, I believe — to yet another portion of the state’s inherent police powers being surrendered to the federal judiciary. 

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  1. Profile Photo Inactive
    @FrederickKey

    Before the end of the day the first polygamy lawsuits based on this ruling will have been filed.

    • #1
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    @AdamFreedman
    Frederick Key: Before the end of the day the first polygamy lawsuits based on this ruling will have been filed. · 0 minutes ago

    Oh, those cases are already under way

    • #2
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    @Douglas

    For all you guys yesterday going “I’m optimistic”…. yes, told you so. I didn’t even bother to read the news this morning. I knew what was coming. With Roberts and Kennedy in the mix… always bet that on of them will go the wrong way. You’ll usually win.

    I can honestly say, looking ahead… it’s only going to get worse from here.

     

    • #3
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    @tabularasa

    Another sad day for America.  Yet one more power of the states gobbled up by the insatiable federal beast.

    Is there a reason the imagery of the Revelation of John keeps popping into my mind today?

    I’m just about ready to start thinking seriously about the various secession ideas that are floating around.

    • #4
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    @Rawls

    The government just shrunk, liberties were expanded, and real conservatism won the day.

    The government has no interest in assessing the genders of two consenting adults who want to enter into the marriage contract.

    • #5
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    @JosephEagar
    Adam Freedman

    Frederick Key: Before the end of the day the first polygamy lawsuits based on this ruling will have been filed. · 0 minutes ago

    Oh, those cases are already under way.  · 7 minutes ago

    The court didn’t legalize gay marriage; it simply struck down DOMA.  In many ways DOMA is a terrible law: it violates the right of states to regulate marriage as they choose.  My problem is with the Prop 8 decision, which (as much as I dislike the law) does seem perfectly constitutional, and should have been upheld.

    • #6
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    @Casey
    Rawls: The government just shrunk, liberties were expanded, and real conservatism won the day.

    Liberties from government were expanded.  Liberty from government was not.

    • #7
  8. Profile Photo Member
    @JosephEagar
    tabula rasa: Another sad day for America.  Yet one more power of the states gobbled up by the insatiable federal beast.

    Is there a reason the imagery of the Revelation of John keeps popping into my mind today?

    I’m just about ready to start thinking seriously about the various secession ideas that are floating around. · 4 minutes ago

    I’m not sure I understand.  DOMA was an imposition on state governments.  It was designed to pressure state governments into formulating a particular kind of marriage law.

    Or did you mean Prop 8?  That did seem like a federal overreach to me.  It would have been much better if Prop 8 had been repealed at the ballot box.  And certainly more legitimate.

    • #8
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    @JMaestro

    If singling out a particular kind of couple for unequal treatment is out of bounds, what shall we make of the 170,000 pages of federal regulation that expose all our activities to legal jeopardy?

    Policy-makers would be vastly limited in their ability to do mischief if they were not allowed to target politically unpopular people for the imposition of unequal treatment. So as much as I will mourn the official recognition of the essential distinction between a man and a woman, I sort of look forward to lawsuits that question all manner of not-so-essential governmental distinctions.

    With a few edits Kennedy’s opinion can be used to challenge the validity of the progressive tax system. The minimum wage. All targeted corporate subsidies. All targeted tax abatements.

    We’ll dismantle their Leviathan using their very own break-in tools.

    • #9
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    @ScarletPimpernel

    How does DOMA intrude on the states?  Nowhere did DOMA say that New York was not free to allow men to marry men.  It did, however, follow the classic dual federalism logic–that U.S. law may define marriage under U.S. law, and states may define it differently.  Hence New York may allow gay couples to file taxes jointly for the purposes of state taxes, but the feds may demand that such people file as individuals.

    • #10
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    @WhiskeySam

    No surprise, and the Supreme Court rolls on unchecked by any other branch of government.

    • #11
  12. Profile Photo Inactive
    @ScarletPimpernel
    Meanwhile, this line, which Instapundit highlights, jumped out at me: “Based on a quick read, this seems like the key sentence: “What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

    Did the Court just rule that states may create protected categories that the federal government must respect?

    Interesting prospects for that. In light of America’s long history of anti-Catholic bigotry, that gives ample room for states to demand very strict scutiny for any law that seems to single out Catholics, or the Church, for hardship.

    • #12
  13. Profile Photo Member
    @tabularasa
    Rawls: The government just shrunk, liberties were expanded, and real conservatism won the day.

    Rawls:

    I understand your point, though I disagree with you about the result, and even more importantly on the rationale for the decision.  

    Totally aside from the result, it’s important to look at how the majority reached its decision.  As Adam points out it involves a mixture here of equal protection and substantive due process.  Those tools got you what you wanted today.  Those are the same tools that will be used justify more and more government intrusion into our lives.   Five justices just told Congress to take its marbles and go home.  And, if Adam is correct (as I suspect he is), they will be telling the legislatures of 40+ states that they can’t define marriage.

    If, for example, you generally prefer state government power to federal power, today’s decision is a major blow.  

    We’ll be having “all Washington, all of the time.”  

    If you think this is a big victory, you may want to read a bit more about King Pyrrhus of Epirus.  He too had a victory, but it didn’t work so well in the long run.

    • #13
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    @JamesGawron

    Adam,

    You’ve heard of fantasy island.  Welcome to fantasy society.  Here in fantasy society there are no a priori moral sexual social maxims such as monotheistic heterosexual monogamy.

    I’m a little older Adam so I remember when Carter was in the White House and everybody was sure that as soon as marijuana was legalized everything would be just great.  Seems completely stupid now but back then is was libertarian magic.

    Every generation has some issue it is completely sure of only to discover a little later in life that they were completely full of…..

    As for the Court, Aron the brother of Moses actually assisted the Israelites in building the Golden Calf.  You see Moses was late coming down the mountain with the tablets and Aron was stalling the rebellion in the ranks.  Amazingly, Gd forgave Aron his sin.

    SCOTUS had better be sure it has the moral standing with Gd that Aron had.

    Regards,

    Jim

    • #14
  15. Profile Photo Member
    @
    tabula rasa: Another sad day for America.  Yet one more power of the states gobbled up by the insatiable federal beast.

    Is there a reason the imagery of the Revelation of John keeps popping into my mind today?

    I’m just about ready to start thinking seriously about the various secession ideas that are floating around. · 12 minutes ago

    Interested in the imagery of Revelation?  I recommend “This is the End” – in theaters now.  It’s a hoot.

    • #15
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    @Douglas
    Rawls: The government just shrunk, liberties were expanded, and real conservatism won the day.

     

    This is a flat out falsehood. There is nothing whatsoever conservative about redefining marriage. It’s one of the most un-conservative things you could possibly do. It’s a radical, revolutionary move, with the intention of destroying the social fabric and replacing it with a counter-cultural opposite. As for the government “shrinking”, a lawful act of Congress, fully within Constitutional powers, was just arbitrarily voided by a court that has assumed supremacy over the elected branch. We have more government, and more layers of government. So your language here is Orwellian.

    • #16
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    @JosephEagar
    Scarlet Pimpernel: How does DOMA intrude on the states?  Nowhere did DOMA say that New York was not free to allow men to marry men.  It did, however, follow the classic dual federalism logic–that U.S. law may define marriage under U.S. law, and states may define it differently.  Hence New York may allow gay couples to file taxes jointly for the purposes of state taxes, but the feds may demand that such people file as individuals. · 4 minutes ago

    Edited 0 minutes ago

    It was designed to pressure state governments, though, into enacting the Feds’ preferred marriage law.  It also conflicted with the states: marriage law isn’t supposed to be made by the federal government at all (or federal courts).

    • #17
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    @Flapjack

    The universalization of “solutions” for divisive issues via the federal government (any branch) will, I fear, create an intolerable rigidity.  Nothing good will come of the recent wave of universaliztion of “solutions”.

    • #18
  19. Profile Photo Member
    @tabularasa
    Joseph Eagar

    I’m not sure I understand.  DOMA was an imposition on state governments. It was designed to pressure state governments into formulating a particular kind of marriage law.

    You are completely wrong.  The operative provision struck down today is section three of DOMA:

    Definition of marriage.  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.

    That provision does not prevent or pressure any state from redefining marriage under state law.  If it “was designed to pressure state governments into formulating a particular kind of marriage law,” one can only wonder why it didn’t work in Maine, Vermont, Massachusett, NY, Delaware and the several other states that created their own definition to include SSM.

    • #19
  20. Profile Photo Inactive
    @mask
    Joseph Eagar

    tabula rasa: Another sad day for America.  Yet one more power of the states gobbled up by the insatiable federal beast.

    Is there a reason the imagery of the Revelation of John keeps popping into my mind today?

    I’m just about ready to start thinking seriously about the various secession ideas that are floating around. · 4 minutes ago

    I’m not sure I understand.  DOMA was an impositiononstate governments.  It was designed to pressure state governments into formulating a particular kind of marriage law.

    Or did you mean Prop 8?  That did seem like a federal overreach to me.  It would have been much better if Prop 8 had been repealed at the ballot box.  And certainly more legitimate. · 10 minutes ago

    Isn’t DOMA just a definition for federal laws and entitlements – leaving the states to define it independently on their own but without the power to determine the efficacy of federal statues?

    • #20
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    @JosephEagar
    tabula rasa

    Totally aside from the result, it’s important to look at how the majority reached its decision.  As Adam points out it involves a mixture here of equal protection and substantive due process.  Those tools got you what you wanted today.  Those are the same tools that will be used justify more and more government intrusion into our lives.   Five justices just told Congress to take its marbles and go home.  And, if Adam is correct (as I suspect he is)<snip for word limit>

    That’s actually a good point.  I still think DOMA deserved to die for federalism reasons. . .but then, I supposed the Court should have used the 10th amendment for that.  Some of the dissenting opinions asserted it was a federalism decision; does anyone know how this will work out precedent-wise?  The Court (for now) is still center-right, and it’d be nice if it treated this decision as a federalism case for purposes of precedent.  Will that happen?

    Could we perhaps get a more detailed legal analysis from Adam or another of Ricochet’s Constitutional lawyers?  Just how bad is this from a precedent perspective?

    • #21
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    @Casey
    tabula rasa

    Rawls:

      Those tools got you what you wanted today.  Those are the same tools that will be used justify more and more government intrusion into our lives.   

    So important.

    This is what it is all about.  This is what SSM is all about.  This is what Obamacare is all about.  This is what it is all all about.

    The power grab happens everywhere all over the world in different ways.  Here the system is such that the tools must be gathered carefully, slowly, subtly.  Eventually the government will possess all the tools.  And then… well, I guess we just pray we don’t elect ourselves a Putin.

    But then I might just be some crazy conspiracy kook who fails to realize we live in Magicland.

    Regards,

    Jake Blount

    • #22
  23. Profile Photo Member
    @JosephEagar
    tabula rasa

    You are completely wrong.  The operative provision struck down today is section three of DOMA:

    Definition of marriage.  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.

    That provision does not prevent or pressure any state from redefining marriage under state law.  If it “was designed to pressure state governments into formulating a particular kind of marriage law,”

    I don’t think it’s constitutional for the Federal government to define marriage at all, myself.  Also, think that, as a practical matter, that clause does pressure state governments; the federal government is, after all, the Big Brother in the room.  Though I suppose it’s not quite in the same league as, say, alcohol minimum age laws, which actually withhold funding if states don’t comply.

    I’ll have to think about this some more.

    • #23
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    @AdamFreedman
    Joseph Eagar

    tabula rasa

    Totally aside from the result, it’s important to look at how the majority reached its decision.  As Adam points out it involves a mixture here of equal protection and substantive due process. Those tools got you what you wanted today.  Those are the same tools that will be used justify more and more government intrusion into our lives.   Five justices just told Congress to take its marbles and go home.  And, if Adam is correct (as I suspect he is)<snip for word limit>

    The Court (for now) is still center-right, and it’d be nice if it treated this decision as a federalism case for purposes of precedent.  Will that happen?

    Could we perhaps get a more detailed legal analysis from Adam or another of Ricochet’s Constitutional lawyers?  Just how bad is this from a precedent perspective? · 6 minutes ago

    Edited 6 minutes ago

    This will not be treated as a federalism decision. That is not the basis for the ruling. The discussion of federalism is simply non-binding “dicta” as lawyers say.

    • #24
  25. Profile Photo Contributor
    @AdamFreedman
    Joseph Eagar

    I don’t think it’s constitutional for the Federal government to define marriage at all, myself.  Also, think that, as a practical matter, that clause does pressure state governments; the federal government is, after all, the Big Brother in the room.  Though I suppose it’s not quite in the same league as, say, alcohol minimum age laws, which actually withhold funding if states don’t comply.

    I’ll have to think about this some more. · 3 minutes ago

    Joseph – it’s not an outlandish argument – many respectable folks have made the federalism argument.  But I disagree.  DOMA doesn’t force states to do anything.  The fact that 12 states recognized SSM in the years since DOMA’s adoption should be proof of that.  Striking down DOMA will actually unleash one of federalism’s most pernicious problems: the ability of states to impose costs on other states.   The full range of federal spousal benefits is expensive: and now, taxpayers in Mississippi will be subsidizing same-sex couples in New York.

    • #25
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    @BarkhaHerman
    Adam Freedman

    Joseph – it’s not an outlandish argument – many respectable folks have made the federalism argument.  But I disagree.  DOMA doesn’t force states to do anything.  The fact that 12 states recognized SSM in the years since DOMA’s adoption should be proof of that.  Striking down DOMA will actually unleash one of federalism’s most pernicious problems: the ability of states to impose costs on other states.   The full range of federal spousal benefits is expensive: and now, taxpayers in Mississippi will be subsidizing same-sex couples in New York. · 5 minutes ago

    If cost is the issue at hand, then the way to solve it is by going after costs, not in a round about way of restricting marriage.

    Why is there any cost benefits to marriage at all?  While you pay people to marry – directly or indirectly, there will be lawsuits to make marriage more equitable.

    • #26
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    @ChrisL
    Rawls: The government has no interest in assessing the genders of TWO consenting adults who want to enter into the marriage contract. 

    *Emphasis mine.  But why stop at two?  Do you have something against polygamous marriages?   Also, how will redefining marriage affect religious groups that do not agree with this new definition?  What kind of protections would be in place so that these groups would not have to go against their own morals?  I realize that the 1st Amendment says that we have freedom of religion, but it seems in the present day this does not seem to protect the religious groups from governmental intrusion (e.g. Affordable Care Act or the IRS targeting conservative and religious groups).  
    • #27
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    @AdamFreedman
    Barkha Herman

    If cost is the issue at hand, then the way to solve it is by going after costs, not in a round about way of restricting marriage.

    Why is there any cost benefits to marriage at all?  While you pay people to marry – directly or indirectly, there will be lawsuits to make marriage more equitable. · 3 minutes ago

    From a libertarian standpoint, it’s probably better not to subsidize any form of marriage.  But the denial of a government subsidy is not a violation of rights, provided the government has a rational basis.  I don’t accept the idea that Congress had no rational basis for defining marriage as it did – Congress used the very definition that was — at that time — in effect in all 50 states, and had been a pillar of civilization.  A few years of social experimentation does not retroactively turn a federal statute into something irrational. 

    • #28
  29. Profile Photo Inactive
    @mask
    Barkha Herman

    If cost is the issue at hand, then the way to solve it is by going after costs, not in a round about way of restricting marriage.

    Why is there any cost benefits to marriage at all?  While you pay people to marry – directly or indirectly, there will be lawsuits to make marriage more equitable. · 6 minutes ago

    This isn’t part of some sort of larger movement towards equity whenever costs are “unequally distributed”.  The left loves to talk about “equality” but they only ever push for “rights” for their own client groups.  If states not licensing gay marriage and opening it up for state largess was such an egregious violation of civil rights then they’d demand polygamy be recognized too.  

    There are all sorts of inequalities that liberals enshrine in the law (i.e., the tax code, hate speech laws) and they aren’t supporters of “equality” wherever they find “inequality” – it’s only a rhetorical flourish when fighting for a client group.

    • #29
  30. Profile Photo Member
    @MiffedWhiteMale
    Joseph Eagar

    Scarlet Pimpernel: How does DOMA intrude on the states?  Nowhere did DOMA say that New York was not free to allow men to marry men.  It did, however, follow the classic dual federalism logic–that U.S. law may define marriage under U.S. law, and states may define it differently.  Hence New York may allow gay couples to file taxes jointly for the purposes of state taxes, but the feds may demand that such people file as individuals. · 4 minutes ago

    Edited 0 minutes ago

    It was designed to pressure state governments, though, into enacting the Feds’ preferred marriage law.  It also conflicted with the states: marriage law isn’t supposed to be made by the federal government at all (or federal courts). · 34 minutes ago

    Could you give an example of this “pressure”?  Were they withholding a percentage of Federal highway funds if a state failed to comply or something?

    • #30

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