Bench Memos

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Reply to Jonathan Adler’s Final Response


In his “final response” to me in our debate on whether DOMA violates federalism, Jonathan Adler contends that I “elide the central question” and fail to “confront[] the real point of contention.” But what actually divides us, I think, is that we have very different understandings of what the “central question” is.

Jonathan dismisses as “rather trivial” my examples of how federalism doesn’t limit the authority of the federal government to define the terms used for purposes of federal law. But of course it often takes only a trivial example to refute a wrong assertion. (In response, say, to the assertion that all prime numbers are odd, it would be “rather trivial” to point out that the number 2 is both even and a prime.)

As I have shown in two posts, even though property law, like marriage, is a matter of state authority, federalism concerns do not limit the power of Congress to define property interests differently, for purposes of provisions of federal law, than states do. When Congress so acts, it doesn’t regulate property law, just as DOMA doesn’t regulate marriage.

In response, Jonathan agrees that “[o]f course, … the federal government can decide what it will or will not tax as property under the estate tax—and it may use a definition to accomplish this goal,” but he contends that “that is quite different from refusing to recognize property (as defined under state law) as property.” I don’t understand his supposed distinction. In my example, Congress is declining to recognize one type of “property (as defined under state law) as property” for the purposes of the federal estate tax. Congress could equally, in a sweeping definition of “property,” state that automobiles don’t count as property for purposes of any provision of federal law. Some of the particular applications of that definition might create problems under specific provisions of the Constitution (e.g., the Takings Clause); if so, those applications might be invalidated. But Congress’s general definition of “property” would be justified by the same powers that it exercised to enact the underlying substantive provisions that the definition plugs into. So I don’t see how that definition could remotely be said to violate principles of federalism.

As I have shown, exactly the same analysis applies for DOMA. Jonathan contends that “the federal government [does not have] a legitimate federal interest in defining marriage as such.” (Emphasis added.) But the federal government, through DOMA, wasn’t “defining marriage as such”; it was defining marriage for the purposes of provisions of federal law. Further, the fact that DOMA merely codified the definition of marriage as the union of a man and a woman that everyone understood already infused the meaning of the word throughout provisions of federal law amply shows that the definition was (to use Jonathan’s terms) “plainly adapted to the implementation of federal law” and “serve[d] a distinctly federal interest” (or multiple such interests).

I’d like to thank Jonathan for engaging in this back-and-forth, and I’m sorry that my discussion with him will apparently end here.


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