Contributor Post Created with Sketch. Gay Marriage and Federalism

 

This week, the Supreme Court will hear argument in a case challenging section 3 of the Defense of Marriage Act (DOMA), which creates a federal definition of marriage, as well as an appeal of the Proposition 8 case out of California. Conservatives generally agree on Prop 8, since the Ninth Circuit’s opinion, like that of the district court, represents a shabby attempt to impose gay marriage by judicial fiat, a la Roe. Clearly, SCOTUS should reverse on Prop 8. 

But conservatives are split on DOMA. Many have jumped on the anti-DOMA bandwagon on the basis of federalism; i.e., that the federal government has no power to define marriage. This position was advanced in a brief by scholars with impeccable credentials (e.g., Randy Barnett, Jonathan Adler, etc).

With respect, I think the anti-DOMA argument is misguided. First, let’s remember that DOMA does not change any state’s definition of marriage. It says that, for purposes of federal law, any reference to “marriage” is limited to the marriage of one man and one woman. The federalism argument goes like this: marriage is a creature of state law. Congress has no enumerated power to interfere with state regulation of marriage.

But wait: roads and bridges are creatures of state law. So are schools. Congress has absolutely no enumerated power to meddle with those, either. And yet, federal law is chock full of mandates and coercive funding conditions that don’t merely interfere with state control, but entirely usurp state control. Corporations, also, are creatures of state law. But that didn’t stop Congress from passing Sarbanes-Oxley and other laws that micromanage corporate governance.

I would like to see all these laws struck down, but DOMA is a different issue. DOMA simply says: to the extent the federal government has any business referring to “marriage” in a statute, the federal government can define that term. DOMA affects approximately 1,100 federal laws. I daresay many of those laws are unconstitutional as beyond Congress’s enumerated powers. But that would be the case whether or not Congress defined “marriage” in those statutes.

If Congress passed a law saying, for example, that states must adopt a particular definition of marriage in order to keep HHS funding (or education funding, etc), I would object to such a law, as I object to all conditional funding statutes. But that is not the case here. States that adopt gay marriage are not penalized by DOMA (indeed 9 states have adopted SSM since DOMA’s passage). 

I should note that I used to buy the federalism argument, but the more I studied it — and searched the scholars’ brief for pearls of wisdom — the less persuaded I became. I have also found Ed Whelan’s pieces at NR’s Bench Memos blog to be very useful in blunting the federalism attack. There is a strong argument to be made for striking d0wn federal statutes that exceed Congress’s power. But I fail to see the problem with a statute that simply amends existing federal laws by adding a definition. 

There are 26 comments.

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  1. No Caesar Thatcher
    No CaesarJoined in the first year of Ricochet Ricochet Charter Member

    Look at these French protestors against Gay Marriage. If you saw the picture without the captions and didn’t bother to read the signs, you’d assume they were protesting for gay marriage.

    • #1
    • March 25, 2013, at 10:57 AM PDT
    • Like
  2. BrentB67 Inactive

    Adam, isn’t there a portion of the DOMA that tries to ensure states that do not approve SSM will not have to honor ‘marriages’ that take occur in states that do have SSM?

    How do you think this will be affected by SCOTUS?

    • #2
    • March 25, 2013, at 11:09 AM PDT
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  3. Adam Freedman Contributor
    Adam Freedman
    BrentB67: Adam, isn’t there a portion of the DOMA that tries to ensure states that do not approve SSM will not have to honor ‘marriages’ that take occur in states that do have SSM?

    How do you think this will be affected by SCOTUS? · 6 minutes ago

    Yes, that’s section 2, but that section is not at issue in the DOMA case. However, if the Prop 8 decision is upheld, it could (depending on the breadth of the decision) create a national constitutional right to same-sex marriage, in which case section 2 is irrelevant since all states will have to recognize same-sex marriages.

    • #3
    • March 25, 2013, at 11:18 AM PDT
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  4. Scarlet Pimpernel Inactive

    The originalist argument is also worth making.

    There is no reasonable argument holding that when the sovereign people ratified the 14th Amendment they thought it included changing the definition of marriage. 

    Perhaps more importantly, they did not think that liberty was the same thing as what we call autonomy.

    If we wish to make the constitution require us to change the definition of marriage, we should ratify and amendment.

    • #4
    • March 25, 2013, at 11:20 AM PDT
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  5. Tommy De Seno Contributor

    Question:

    Assume my state allows a gay couple to file joint state tax returns.

    With DOMA, will the Feds allow a joint federal return?

    • #5
    • March 25, 2013, at 11:21 AM PDT
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  6. Bereket Kelile Member
    Bereket KelileJoined in the first year of Ricochet Ricochet Charter Member
    Adam Freedman

    Yes, that’s section 2, but that section is not at issue in the DOMA case. However, if the Prop 8 decision is upheld, it could (depending on the breadth of the decision) create a national constitutional right to same-sex marriage, in which case section 2 is irrelevant since all states will have to recognize same-sex marriages. · 7 minutes ago

    I was thinking about this and wondering, from the perspective of SSM advocates, if that was the key to expanding gay marriage across the country. That is, if one state includes gay couples and other states have to honor that then you get gay marriage nation-wide without having to change the federal law. 

    About this point, is there room for maneuver for states when it comes to the requirement to honor another state’s public records? That is, is there some way that a state can meet this obligation without having to undo its own laws regarding marriage?

    • #6
    • March 25, 2013, at 11:30 AM PDT
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  7. Adam Freedman Contributor
    Adam Freedman
    Tommy De Seno: Question:

    Assume my state allows a gay couple to file joint state tax returns.

    With DOMA, will the Feds allow a joint federal return? · 8 minutes ago

    DOMA is current law and my understanding is, no, gay couples cannot opt for “married filing jointly” status.

    • #7
    • March 25, 2013, at 11:31 AM PDT
    • Like
  8. Tommy De Seno Contributor
    Adam Freedman
    Tommy De Seno: Question:

    Assume my state allows a gay couple to file joint state tax returns.

    With DOMA, will the Feds allow a joint federal return? · 8 minutes ago

    DOMA is current law and my understanding is, no, gay couples cannot opt for “married filing jointly” status. · in 0 minutes

    Isn’t that proof that you can’t really keep the state and federal definitions separate?

    • #8
    • March 25, 2013, at 11:34 AM PDT
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  9. Scarlet Pimpernel Inactive

    “Proof that you can’t really keep the state and federal definitions separate?”

    Why so? To be sure it’s a complication, but that does not mean it cannot be done.

    • #9
    • March 25, 2013, at 11:39 AM PDT
    • Like
  10. Adam Freedman Contributor
    Adam Freedman
    Tommy De Seno
    Adam Freedman
    Tommy De Seno: Question:

    Assume my state allows a gay couple to file joint state tax returns.

    With DOMA, will the Feds allow a joint federal return? · 8 minutes ago

    DOMA is current law and my understanding is, no, gay couples cannot opt for “married filing jointly” status. · in 0 minutes

    Isn’t that proof that you can’t really keep the state and federal definitions separate? · 2 minutes ago

    I’m afraid I don’t see how that proves anything. State and federal governments are free to create different tax regimes, even if it creates more paperwork for certain filers.

    • #10
    • March 25, 2013, at 11:40 AM PDT
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  11. Scarlet Pimpernel Inactive

    If sexual fidelity, among other things, is not a requirement, why would it be illegal for two businessmen to marry, exchange ownership of a company and cash inside their marriage, tax free, and then divorce?

    Why would that be illegal? What is there in the definition of marriage that says that would be illegal? 

    Must marriage include sex? That would exclude many old couples, and perhaps many others, I suspect. Must married couples live together? Not true already. Etc.

    • #11
    • March 25, 2013, at 11:41 AM PDT
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  12. Tommy De Seno Contributor
    Adam Freedman
    Tommy De Seno
    Adam Freedman
    Tommy De Seno: Question:

    Assume my state allows a gay couple to file joint state tax returns.

    With DOMA, will the Feds allow a joint federal return? · 8 minutes ago

    DOMA is current law and my understanding is, no, gay couples cannot opt for “married filing jointly” status. · in 0 minutes

    Isn’t that proof that you can’t really keep the state and federal definitions separate? · 2 minutes ago

    I’m afraid I don’t see how that proves anything. State and federal governments are free to create different tax regimes, even if it creates more paperwork for certain filers. · 3 minutes ago

    But the Feds will be allowing some in my state to gain an advantage while denying it to others, even though the state treats them the same.

    That means WITHIN the state, there is an advantage.

    I see an equal protection problem there.

    • #12
    • March 25, 2013, at 11:47 AM PDT
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  13. Scarlet Pimpernel Inactive

    But the law is not reason simply, it is an artificial perfection of reasion, and Coke noted.

    From the perspective of positive law, this is not what the statute (or uberstatute) that the people ratified. The law can make distinctions. The constitution is, in part, positive law. As such, it needn’t always be troubled by creating situtions where there are inequalities inside states.

    • #13
    • March 25, 2013, at 11:52 AM PDT
    • Like
  14. Adam Freedman Contributor
    Adam Freedman

    By the way, I should mention that not all conservative scholars have signed on to the federalism brief. Nicohoas Quinn Rosenkranz, one of the leading constitutional scholars and a colleague of Randy Barnett at Georgetown, also argues that DOMA section 3 is consistent with federalism. See here and here.

    • #14
    • March 26, 2013, at 1:58 AM PDT
    • Like
  15. Tommy De Seno Contributor
    Adam Freedman
    Tommy De Seno

    But the Feds will be allowing some in my state to gain an advantage while denying it to others, even though the state treats them the same.

    That means WITHIN the state, there is an advantage.

    I see an equal protection problem there. · 5 minutes ago

    Equal protection does not mean that the IRS must grant every tax advantage dreamed up by the states. The question is whether gays are a protected class and if so, whether the traditional definition of marriage can withstand whatever level of judicial scrutiny the court decides to apply. If there is a violation of equal protection, then the violation would not depend on a discrepancy between state and federal tax regimes. · 2 hours ago

    The state is presenting two people in exactly the same condition. The Feds are splitting them up into favored and disfavored groups.

    Which level of scrutiny will you suppose the court will apply to that action?

    I believe marriage is a fundamental right, so you know where I stand.

    • #15
    • March 26, 2013, at 2:16 AM PDT
    • Like
  16. Adam Freedman Contributor
    Adam Freedman
    Tommy De Seno

    The state is presenting two people in exactly the same condition. The Feds are splitting them up into favored and disfavored groups.

    Which level of scrutiny will you suppose the court will apply to that action?

    It is the essence of law to make distinctions; most of them are not invidious. Assuming for the sake of argument that DOMA presents an equal protection issue (and it would be only a pseudo-issue because the equal protection clause applies only to the states), then it should be judged by rational basis scrutiny and upheld.

    • #16
    • March 26, 2013, at 2:24 AM PDT
    • Like
  17. Adam Freedman Contributor
    Adam Freedman
    Tommy De Seno

    I believe marriage is a fundamental right, so you know where I stand.

    The First Amendment guarantees every clergyman’s right to perform any sort of marriage, and it protects everyone’s right to refer to their relationships as “marriage.” But it doesn’t guarantee state recognition and subsidies for every purported “marriage.” Does your “fundamental right” extend to polygamous marriages? Incestuous marriages? Asexual marriage? Or in Scarlet’s example above, marriage between business partners? If not, why not? 

    • #17
    • March 26, 2013, at 2:30 AM PDT
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  18. Tommy De Seno Contributor
    Adam Freedman
    Tommy De Seno

    I believe marriage is a fundamental right, so you know where I stand.

    The First Amendment guarantees every clergyman’s right to perform any sort of marriage, and it protects everyone’s right to refer to their relationships as “marriage.” But it doesn’t guarantee state recognition and subsidies for every purported “marriage.” Does your “fundamental right” extend to polygamous marriages? Incestuous marriages? Asexual marriage? Or in Scarlet’s example above, marriage between business partners? If not, why not? · 8 minutes ago

    In my view, it has to extend to those things for folks to be equally protected.

    That’s why my ultimate position is outside that box:

    Marriages are private contracts. The government has a recording requirement like with deeds to prevent fraud. The judiciary can rule on breach. No government benefits or taxes.

    Just as it was for thousands of years (sometimes sans the recording) before the 1750s, when government got too involved and started ruining marriage.

    • #18
    • March 26, 2013, at 2:42 AM PDT
    • Like
  19. Adam Freedman Contributor
    Adam Freedman
    Tommy De Seno

    In my view, it has to extend to those things for folks to be equally protected.

    That’s why my ultimate position is outside that box:

    Marriages are private contracts. The government has a recording requirement like with deeds to prevent fraud. The judiciary can rule on breach. No government benefits or taxes.

    Just as it was for thousands of years (sometimes sans the recording) before the 1750s, when government got too involved and started ruining marriage. · 21 minutes ago

    Ah, now I see your position. Well, I agree that government involvement does tend to ruin things!

    • #19
    • March 26, 2013, at 3:08 AM PDT
    • Like
  20. Tommy De Seno Contributor
    Adam Freedman
    Tommy De Seno

    In my view, it has to extend to those things for folks to be equally protected.

    That’s why my ultimate position is outside that box:

    Marriages are private contracts. The government has a recording requirement like with deeds to prevent fraud. The judiciary can rule on breach. No government benefits or taxes.

    Just as it was for thousands of years (sometimes sans the recording) before the 1750s, when government got too involved and started ruining marriage. · 21 minutes ago

    Ah, now I see your position. Well, I agree that government involvement does tend to ruin things! · 0 minutes ago

    That’s why I still want the $25 back I had to pay for my marriage license. I wasn’t looking for government’s recognition or approval. 

    It was like a car jacking! They took it from me!

    • #20
    • March 26, 2013, at 3:22 AM PDT
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  21. Fricosis Guy Listener

    Considering their high average income, they’re likely to hate that marriage penalty for high earners. Liberals mugged by reality!

    Tommy De Seno
    Adam Freedman
    Tommy De Seno
    Adam Freedman
    Tommy De Seno: Question:

    Assume my state allows a gay couple to file joint state tax returns.

    With DOMA, will the Feds allow a joint federal return? · 8 minutes ago

    DOMA is current law and my understanding is, no, gay couples cannot opt for “married filing jointly” status. · in 0 minutes

    Isn’t that proof that you can’t really keep the state and federal definitions separate? · 2 minutes ago

    I’m afraid I don’t see how that proves anything. State and federal governments are free to create different tax regimes, even if it creates more paperwork for certain filers. · 3 minutes ago

    But the Feds will be allowing some in my state to gain an advantage while denying it to others, even though the state treats them the same.

    That means WITHIN the state, there is an advantage.

    I see an equal protection problem there. · 4 hours ago

    • #21
    • March 26, 2013, at 4:32 AM PDT
    • Like
  22. Bereket Kelile Member
    Bereket KelileJoined in the first year of Ricochet Ricochet Charter Member

    I’m not sure I’d agree that marriage is a private contract, only because I think it’s very much a social institution. That’s why we have weddings. Parents also make provision for their children in the case of their death, where people need to get involved. 

    • #22
    • March 26, 2013, at 4:38 AM PDT
    • Like
  23. Keith Inactive
    Bereket Kelile: I’m not sure I’d agree that marriage is a private contract, only because I think it’s very much a social institution. That’s why we have weddings. Parents also make provision for their children in the case of their death, where people need to get involved. · 57 minutes ago

    Marriage is not (or should not be) a contract, but modern marriage and our government has made it thus. 

    I’m all for splitting the civil and spiritual aspects of marriage. Making it a civil union for obvious reasons, and letting the church handle the spiritual side, with no power of the government to coerce any person or group to partake in any spiritual marriage they are opposed to.

    I would then urge pastors to not do a civil union license, so they would not get drawn into any conflict.

    • #23
    • March 26, 2013, at 6:04 AM PDT
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  24. Bereket Kelile Member
    Bereket KelileJoined in the first year of Ricochet Ricochet Charter Member
    Keith Bruzelius

    I’m all for splitting the civil and spiritual aspects of marriage. Making it a civil union for obvious reasons, and letting the church handle the spiritual side, with no power of the government to coerce any person or group to partake in any spiritual marriage they are opposed to.

    I think that’s a sincere attempt at a reasonable compromise but I believe that, in reality, there’s a conflict between “gay marriage” and religious liberty. We’re only talking about state recognition, not anyone’s actual rights under the law. Gay people are free to “marry.” However, as laws change we will continue to see religious liberty threatened. I’m not sure that most people understand this problem yet.

    • #24
    • March 26, 2013, at 6:25 AM PDT
    • Like
  25. Adam Freedman Contributor
    Adam Freedman
    Tommy De Seno

    But the Feds will be allowing some in my state to gain an advantage while denying it to others, even though the state treats them the same.

    That means WITHIN the state, there is an advantage.

    I see an equal protection problem there. · 5 minutes ago

    Equal protection does not mean that the IRS must grant every tax advantage dreamed up by the states. The question is whether gays are a protected class and if so, whether the traditional definition of marriage can withstand whatever level of judicial scrutiny the court decides to apply. If there is a violation of equal protection, then the violation would not depend on a discrepancy between state and federal tax regimes. 

    • #25
    • March 26, 2013, at 12:03 PM PDT
    • Like

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