In my recent National Review essay entitled “Federalism and Marriage,” I explained how the definition of marriage, for purposes of provisions of federal law only, in section 3 of the federal Defense of Marriage Act “respects and implements federalism by exercising the federal government’s authority over federal law.”
Taking the opposite position, an amicus brief submitted by six “federalism scholars” in the pending challenge to DOMA (in United States v. Windsor) contends that section 3 “is an unconstitutional and unprecedented incursion into States’ police powers.” I find the brief’s arguments badly confused and utterly unpersuasive. Let’s consider them:
1. The brief dedicates 20 pages (pp. 5-25) to arguing that DOMA is beyond Congress’s powers. But it somehow never stops to ponder the elementary question how Congress could possibly lack the power to define the terms that it uses in provisions of federal law.
The brief argues seriatim that Congress lacks the enumerated power to define marriage, that DOMA is not a “necessary” or “proper” means of furthering any of Congress’s enumerated powers, and that it is too broad to be “plainly adapted” to any of those powers. What all these arguments overlook is that section 3 of DOMA is merely definitional and that section 3 plugs into other congressional enactments. If those other enactments are within Congress’s power, then it is plainly within Congress’s power to define the terms it uses in those enactments. (And insofar as any of those other enactments are outside Congress’s power, it is those enactments, not section 3 of DOMA, that fall.)
To highlight the confusion: The brief thinks it meaningful to argue that DOMA can’t be “justified under the Spending Clause” because it “is not a narrow statute that applies only to federal benefit schemes” but instead “affects … copyright protection, government ethics, and [federal] testimonial privileges” (pp. 13-14). But insofar as the Congress has the authority to enact federal benefit schemes, copyright protection, government ethics laws, and testimonial privileges, it obviously has the power to define the meaning of the terms that it uses in those enactments.
In this regard, it is worth noting that section 3 of DOMA, which is codified as 1 U.S.C. § 7, is just one of a handful of definitional provisions set forth in federal law. For example, section 2 of Title 1 of the U.S. Code states, “The word ‘county’ includes a parish, or any other equivalent subdivision of a State or Territory of the United States.” Under the confused illogic of the amicus brief, the federalism scholars would argue that Congress lacks the enumerated power to define county, that the definition of county is not a “necessary” or “proper” means of furthering any of Congress’s enumerated powers, that it is too broad to be “plainly adapted” to any of those powers, and that it can’t be justified under the Spending Clause. But, as with the term marriage, it is nonsensical to consider the definition of a term in isolation from the contexts in which federal law uses that term.
The brief also thinks it troublesome that DOMA applies uniformly—or, as it puts it, “indiscriminately” (p. 18)—to all provisions of federal law. All that means is that DOMA consistently applies the principle that marriage is the union of a man and a woman under federal law. It’s a safe bet that if DOMA instead selectively applied its definition, the brief would be complaining about its inconsistency.
2. The brief argues (pp. 25-40) that DOMA “invades the States’ reserved powers” in various ways:
a. The brief falsely alleges that Congress has made an “unprecedented assertion that it has equal power to decide who can marry” (p. 26). But Congress, through DOMA, does not exercise any “power to decide who can marry.” It doesn’t nullify or preempt the state-law effect of any marriages authorized under state law. And, far from being unprecedented, it merely reaffirmed and made crystal clear what Congress has always meant by the term marriage in provisions of federal law.
The brief’s suggestion that DOMA “mean[s] that the national government can exercise all the same powers over family law that the States exercise” (p. 27 (emphasis in original)) is absurd. The brief repeatedly quotes the passage in the House of Representatives’ brief stating that “the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes” (emphasis added), but it evidently doesn’t understand what this passage means. Contrary to what the brief insinuates, the House is not claiming a general “police power” to regulate marriage. Rather, the House is merely making clear that the federal government’s authority in the realm of federal law includes the authority to define the term marriage in provisions of federal law.
The brief invokes the 1956 case of De Sylva v. Ballentine to support its contention that the federal government must accept family relationships created under state law. But the Court there merely held that the “general scheme” of the Copyright Act looked to state law to determine family relationships, including for the meaning of the term children. The fact that Congress has often found it convenient to build on the state law of domestic relations doesn’t mean that it is required to do so.
Indeed, in De Sylva itself, the Court stated, “This [the general incorporation of the state law of domestic relations into the Copyright Act] does not mean that a State would be entitled to use the word ‘children’ in a way entirely strange to those familiar with its ordinary usage.” It was a very similar concern—that a state would use the word marriage in a way entirely strange to those familiar with its ordinary usage in order to alter the rights under federal law—that resulted in Section 3 of DOMA.
b. The brief claims that DOMA “interferes with the States’ exercise of their reserved power to define marriage for their own purposes” to such an extent that it “discourages States from experimenting in this area at all” (p. 31). The fact that nine states (as well as the District of Columbia) have adopted same-sex marriage laws since DOMA’s enactment, and that several others are considering doing so, disproves the brief’s hyperbole.
The brief’s lead contention is that federal programs that employ cooperative-federalism schemes put states to the choice of “violating state domestic-relations law and forgoing billions of dollars in federal funding” (p. 32). But as the brief itself acknowledges, states have a third option of using their own funds to provide benefits to same-sex spouses. How is it more consistent with federalism to require the taxpayers of other states with traditional marriage laws to pay higher federal taxes to pay for those benefits?
c. The brief claims that DOMA “infringes individual liberty by pervasively denying the status of validly married couples” (p. 36). But that is merely a pejorative way of describing the effects of a federalist system of dual sovereigns. The brief’s claim that DOMA “creates significant uncertainty within [the] private realm” (p. 36 (emphasis added)) is contradicted by the fact that the brief is able to define with certainty the federal benefits that aren’t available to same-sex couples.
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I’m sorry to note that among the six signatories to the brief are Jonathan Adler, who writes here and at the Volokh Conspiracy, and three of his fellow VC bloggers, including Randy Barnett, the architect of the challenge to the Obamacare mandate.
Update: At the Volokh Conspiracy, law professor Nicholas Quinn Rosenkranz agrees with me that the amicus brief’s argument is unsound.