Bench Memos

NRO’s home for judicial news and analysis.

Why Did the Solicitor General Demur on Federalism?


Ed Whelan has been patiently explaining to all and sundry that the Defense of Marriage Act violates no principle of federalism when it chooses the traditional definition of “marriage” for purposes of federal law. Ed first wrote an NR article that no one has yet refuted, and readers can check Ed’s recent blog posts for his running debate with others, including our co-blogger Jonathan Adler.

The latest wrinkle in this debate concerns the effects of a ruling that DOMA violates some principle of federalism.  Noah Feldman, who supports same-sex marriage, contends that it would produce “legal chaos,” thanks to there being “couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits,” and so forth–prompting waves of new litigation.  To this Ilya Somin replies that he doesn’t “see the problem here. If same-sex couples get married in State A, receive federal marriage benefits, and then move to State B, which denies them state-level marriage benefits, there is no need for litigation of any kind. The couple in question will have federal marriage benefits, but no state ones (at least none from State B).” 

As Ed has pointed out, this argument puts Somin on the record as saying that if DOMA is overturned on federalism grounds, then the federal government is obliged to give federal marriage benefits to same-sex couples in the state of their marriage, and obliged to treat those federal benefits as portable into any other state, remaining intact despite the new domiciliary state not recognizing the marriage.  So a purported “federalism” principle turns out to be the vehicle for nationalizing recognition of same-sex marriage, at least as to federal benefits.  Yes, that’s some federalism.

All this has turned my mind back to one of the most interesting moments in last Wednesday’s oral argument in the Windsor case.  Solicitor General Verrilli had just come to the lectern, and Chief Justice Roberts wanted to know if a kind of “anti-DOMA,” extending federal benefits to all “committed same-sex couples” in every state, regardless of local law on same-sex marriage, would run afoul of federalism.  Verrilli replied that it wouldn’t violate equal protection.  Roberts reiterated that he was asking about whether there was a federalism problem.  Verrilli said there was not.  Roberts then said, “So just to be clear, you don’t think there is a federalism problem with what Congress has done in DOMA?”  Verrilli responded, “We–no, we don’t, Mr. Chief Justice.”

This somewhat surprising response brought Justice Kennedy, and then Justice Kagan, into the fray, joining the chief justice in pressing Verrilli to clarify: was it really the government’s position that DOMA’s section 3 does not run afoul of anything in our federalism?  Justice Kennedy in particular emphasized that the Court first wants to know whether the law is “valid . . . to begin with” as an exercise of congressional power, “before we get to the equal protection analysis.”  The solicitor general gamely (and repetitively) insisted that “apart from the equal protection violation, we don’t think that Section 3 apart from equal protection analysis raises a federalism problem.”  (The entire exchange can be found at pp. 81-84 of the transcript.)

What was interesting about this was that the solicitor general was eschewing a classic kitchen-sink strategy of employing every available and conceivable argument that might win his case.  It’s even an argument that some prominent amici had made, that a former federal judge had endorsed (sort of) in a national newspaper, and that a famous Washington columnist had endorsed as well.  And Verrilli was throwing it away.  Why?

One possibility is that Verrilli, and his colleagues at the Obama DOJ regard the federalism argument against DOMA as fundamentally unsound.  In this they would be correct, and would also be in the rare position of agreeing with the formidable Ed Whelan, among others.  And the chief justice and Justice Alito went on to make short work of this position in oral argument.  Yet the argument, even if hopelessly wrong, has a certain surface plausibility, and Justice Kennedy seemed at least slightly susceptible to it–though he almost certainly has a lower regard for it now, if he really listened both to Verrilli and his colleagues last Wednesday.  If there was an outside chance of persuading Justice Kennedy that DOMA traduces federalism, why not press the point?

I think the answer is that the federalism rationale for undoing DOMA’s section 3 does not produce the automatic chaos that Noah Feldman fears.  Nor does it automatically make every married same-sex couple’s marital status portable across state lines as far as federal benefits are concerned, as Ilya Somin seems to think.  For surely a future conservative administration could decide that the real import of federalism is that the domiciliary state’s law of marriage always defines the federal government’s treatment of every couple claiming to be married.  (Isn’t this precisely the claim of Windsor, after all, whose marriage did not originate in New York but “traveled” there from Canada?)

The Obama Justice Department, I believe, will not be satisfied with the overturning of DOMA’s section 3.  They are going after section 2 as well, in a long game of which the Windsor case is only the beginning.  Especially if Prop 8 survives in the Perry case, the Obama administration wants a ruling against section 3 on equal protection grounds, not federalism grounds.  That sets up section 2 for a fall.

Why?  Because if DOMA’s section 3 is struck down on federalism grounds, then the federal government must recognize same-sex couples as married who live in states that have established or recognized same-sex marriage.  The federal government is not obliged to continue recognizing those marriages if the couples move to a state with no such recognition.  There is a strong case, given Windsor’s factual predicates, that the federal government should not recognize marriages in the latter circumstances.  And there would be no strong case for threatening section 2 of DOMA, which preserves each state’s right of non-recognition of same-sex marriage when couples move in from a state where they were married.

But if the rationale for overturning section 3 is equality, the fallout is quite different.  Assume for a moment that Prop 8 survives the Perry challenge.  Even without declaring a nationwide “right” of same-sex marriage, the Court could decide Windsor on an equal protection basis, saying that the federal government cannot treat two different categories of married couples differently who are “equal” in the eyes of the state where both categories are married, and that this is a form of “irrational animus” against same-sex couples stemming from impermissible anti-gay prejudice.

Then, if such equality is the rationale, a ruling against DOMA’s section 3 will be treated by this administration as compelling the federal government to regard marital status as portable to new states of residence, regardless of local law’s non-recognition of same-sex marriage.  And once a same-sex couple married in New York (for example) moves to Pennsylvania, and is continuously treated as married by the federal government, they will sue Pennsylvania for not treating them as married, citing not only the law of the state where they were married, but their position under federal law–a position supported, and arguably compelled, by an equality-based ruling against section 3 of DOMA.  How long would section 2 last under this bombardment?  Not long.  If the federal government is obliged to treat all New York couples as married because New York says so, and attaches a federal-law status that travels to Pennsylvania, it is quite easy to compel the conclusion that Pennsylvania is violating equality by not recognizing such couples as married, and section 2 of DOMA will provide no shield for the state.  Only if DOMA is understood to have something to do with preserving federalism could Pennsylvania find shelter in a defensibly intact section 2.

So it is very important, from the perspective of the Obama administration, not to have a “federalism” ruling against DOMA’s section 3, because that rationale could actually strengthen states’ claims under section 2 that they need not recognize same-sex marriages contracted elsewhere.  And this administration, in a foreseeable future case, wants to fatally weaken such claims, and topple what remains of the Defense of Marriage Act.  For this, only an equality-based ruling will do.

Of course, there are no good arguments for striking down section 3 of DOMA, either on equality or federalism grounds, and any ruling against it will produce needless mischief that the Act is designed, quite constitutionally, to prevent.  But the Obama administration appears to want a particular kind of mischief, and so prefers the equality argument.  Unlike Ms. Windsor’s counsel, it has no client in the case.  It has only an ideological project of foisting same-sex marriage on the whole country, by hook or by crook.


(Simply insert your e-mail and hit “Sign Up.”)

Subscribe to National Review