On Friday, Ed posed some questions to me and Randy Barnett about our position on DOMA. Randy’s response, which I’m happy to endorse, is here. Invalidating DOMA would neither nationalize SSM nor create “chaos.” What it would do is restrain the federal government from further exceeding its proper bounds and leave the question of marriage where it belongs.
In another recent response, Ed continues to elide the central question. As before, Ed uses rather trivial examples of how the federal government might choose to define various terms for the purposes of federal law without confronting the real point of contention. Of course, as Ed suggests, 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 that is quite different from refusing to recognize property (as defined under state law) as property. So, as we noted in our brief, the federal government’s inclusion of an antifraud marriage provision in federal immigration law presents a different question from whether the federal government may refuse to recognize a marriage (as defined under state law) as a marriage. The antifraud provision is plainly adapted to the implementation of federal law and serves a distinctly federal interest. Section 3 of DOMA does not. Similarly, that the IRS looks at whether one was married during the relevant tax year, and not whether one was still married on December 31, tells us nothing about whether the federal government has a legitimate federal interest in defining marriage as such.
As I noted in this VC post:
The question, again, is not whether Congress adopted a definition of some special term, but the actual effect and intent of the legislative act in question. And while I understand the reluctance to launch open-ended inquiries into legislative pretext, in the case of DOMA, no such inquiry is necessary. Congress was quite explicit about what it sought to do: “Defend” a traditional definition of marriage against changes adopted under state law. That Congress sought to do this through the adoption of a legal definition is of no import. Congress has no power to pursue such a goal, and there is no distinctly federal interest to invoke in Section 3′s defense.
There are ample state interests that can be invoked to defend a traditional definition of marriage. For this reason, the defense of Prop 8 should succeed, even if subjected to intermediate scrutiny. But that there are important state interests that may be marshaled in traditional marriage’s defense does not mean these are cognizable federal interests that may be invoked in DOMA’s defense.
I suspect Ed still disagrees. If he so chooses, he may have the last word. Barring meaningful developments, this (and this morning’s VC post) are my last in this debate.