Bench Memos

The Basics on the DOMA Case

Here is an overview of why the Supreme Court ought to hold that section 3 of the Defense of Marriage Act is constitutionally permissible—and of why it can’t invalidate section 3 without inventing a constitutional right to same-sex marriage:

1. The Defense of Marriage Act was approved by overwhelming majorities in each House of Congress (85-14 in the Senate, 342-67 in the House) in 1996 and signed into law by President Clinton. Senators who voted in favor of DOMA included Biden, Bradley, Daschle, Kohl, Leahy, Levin, Lieberman, Mikulski, Murray, Reid, Sarbanes, and Wellstone.

The fact that so many strong supporters of gay rights voted for (or, in Clinton’s case, signed into law) DOMA renders ludicrous the revisionist claim that DOMA should be deemed to reflect some sort of animus against gays and lesbians.

Further, far from effecting any change in federal law, DOMA merely made explicit what had always been implicit.

2. Section 3 of DOMA defines what the terms marriage and spouse mean for provisions of federal law only: marriage “means only a legal union between one man and one woman as husband and wife,” and spouse “refers only to a person of the opposite sex who is a husband or a wife.”

DOMA is entirely consistent with our system of federalism. Indeed, it is an implementation of federalism. Under federalism, issues in the state realm are governed by state law, and issues in the national realm are governed by federal law. DOMA doesn’t impair the ability of any state to redefine marriage for purposes of state law, and section 3 of DOMA is an exercise of the federal government’s ability to define marriage for purposes of provisions of federal law.

No one can seriously maintain the proposition that federalism (or any other constitutional principle) somehow requires that the federal government treat as a marriage for purposes of federal law whatever any state defines as a marriage. If that proposition were valid—if, that is, the term marriage were truly an empty vessel that states could define however they wish, with such definition being incorporated into provisions of federal law—that would mean, say, that a state that recognized polyamorous marriages would trigger federal benefits (prorated, let’s assume) for members of those marriages. Even if another state chose to limit marriage to a two-person union, it could allow adult siblings to marry and to reap federal benefits. Yet another state could deem any two business partners, or any two neighbors, who are otherwise unmarried to be married. (After all, if the term marriage can mean anything, it can mean virtually nothing.) In all these instances, the federal government would have to extend the federal benefits of marriage in accordance with the states’ wildly varying definitions.

3. 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.

Those attacking DOMA contend that DOMA can be invalidated on constitutional grounds that don’t compel invention of a constitutional right to same-sex marriage. But if (as I think is clearly the case) there is no constitutional right to same-sex marriage, then on what possible basis can the federal government be required to subsidize state experiments in same-sex marriage and to coerce citizens of other states to subsidize those experiments?

4. In defining marriage for purposes of provisions of federal law, it is permissible for the government to set forth the essential components of marriage under federal law while accepting state variants on incidental features.

Section 3 of DOMA sets forth three essential components of a marriage for purposes of provisions of federal law: (a) the marriage must be a “legal union”; (b) it must be male-female; and (c) it must be between two persons. Beyond that, it treats existing state variations on, say, age of consent or degrees of consanguinity as incidental.

Most (perhaps all) opponents of DOMA object only to the second of the three essential components of marriage that section 3 sets forth. They thus implicitly acknowledge that it is entirely reasonable for the federal government to use its own uniform definition of the essential components of marriage as the basis for distributing federal marital benefits.

To be sure, the federal government can’t violate the Constitution in defining the essential components of marriage. But, again, those challenging DOMA claim that DOMA can be invalidated on constitutional grounds that don’t compel invention of a constitutional right to same-sex marriage. If it is constitutionally permissible for the states to have traditional marriage, it necessarily follows that it is constitutionally permissible for section 3 of DOMA to set forth the male-female nature of marriage as one of the essential components of a marriage for purposes of provisions of federal law.

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