1. Justice Kennedy’s gaseous and gauzy rhetoric combine with what Justice Scalia aptly calls his “rootless and shifting … justifications” to yield a ruling that has no coherent discernible principle and that is thus essentially lawless. (That, of course, is often the case with Kennedy opinions. Romer v. Evans, which yesterday’s opinion invokes and resembles, is a prime example.) All we know is that DOMA’s definition of marriage for purposes of federal law earns Kennedy’s disapproval. But as to how the mélange of propositions that Kennedy throws out might apply to a future federal definition of marriage (again, for purposes of federal law only) that excludes polyamorous marriages, or adult incestuous marriages, or child marriages, who can know?
2. As law professor Will Baude, who has written extensively on DOMA and choice-of-law principles, observes, yesterday’s ruling “means that same-sex couples and the federal government now have to confront a series of complicated and difficult choice of law questions.” Avoiding those questions, as Scalia pointed out, was one of the many reasons that ought to have sufficed to justify DOMA.
3. Kennedy complains that DOMA “creat[es] two contradictory regimes within the same State” and thus “forces same-sex couples to live as married for the purpose of state law and unmarried for the purpose of federal law.” But it’s equally clear (as this Washington Post article discusses) that the federal regime that the Obama administration is going to try to impose will create “two contradictory regimes within the same State.” Take, for example, Adam and Steve, who “marry” in New York but reside (or later move to) Virginia. The Obama administration will treat them as married for all or many purposes of federal law, even as Virginia treats them as unmarried.
Of course, Kennedy’s objection isn’t to the existence of “two contradictory regimes” per se, but to the failure of federal law to treat as marriages those relationships that a state “has found it proper to acknowledge and protect” as marriages. In other words, there is a one-way ratchet built into his approach. By striking down DOMA’s section 3, the Court isn’t requiring the federal government to defer to state definitions of marriage generally. It is requiring the federal government to defer only to state definitions that allow same-sex marriage. For those states that don’t allow same-sex marriage, the federal government will be free to create a contradictory federal regime.
4. As Scalia points out, Kennedy confusedly both invokes and disclaims concerns of federalism. As I’ve argued extensively (including in this NR essay), far from violating principles of federalism, DOMA’s section 3 respects and implements federalism by exercising the federal government’s authority over federal law. Among other things:
Far from effecting any departure from past practice, DOMA merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. DOMA doesn’t intrude at all on a state’s authority to regulate marriage under state law. It doesn’t nullify or prohibit any marriages, or in any other respect preempt the operation of state law. On the contrary, it leaves the states free to define, or redefine, marriage as they please.…
There is no substantively neutral position available to the federal government in defining marriage for purposes of provisions of federal law. If the federal government chooses to incorporate into federal law a state’s revised and expanded definition of marriage, it inevitably is subsidizing, and implicitly validating, that state’s redefinition, and it is forcing the citizens of other states to subsidize that redefinition.