Bench Memos

George Will Gets Snookered Against DOMA—Part 1

Or perhaps I should say that George Will snookers himself against the Defense of Marriage Act. For anyone who uncritically parrots, as Will does, the lousy arguments made in the “federalism scholars’” amicus brief against DOMA isn’t really giving serious attention to the matter. I must also marvel at the fact that it has taken Will 17 years to discover (mistakenly) that DOMA’s “purpose is constitutionally improper.”

Let’s look at Will’s errors:

1. Will contends that the very name of the law bespeaks an improper federal purpose to protect a matter, marriage, that is a “state responsibility.” But DOMA would be more accurately named the Defense of Marriage Federalism Act, as its two substantive provisions operate to preserve the authority of the states and the federal government to define marriage as they see fit within their respective realms.

As I explain in the first half of my recent National Review essay entitled “Federalism and Marriage,” 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.” (I encourage anyone tempted to embrace Will’s errors to read that essay.)

2. Will thinks it significant that before DOMA’s enactment in 1996, “federal statutes functioned without [a general] definition” of marriage, and he embraces the amicus brief’s assertion that “federal law took state law as it found it.” Those facts, he asserts, raise the question “whether DOMA is ‘necessary and proper’ for the exercise of a constitutionally enumerated congressional power.”

As the House brief points out, “even before DOMA was enacted, federal-law references to marriage employed the traditional definition.” (Brief at 5-6 (citing, inter alia, provisions referring to “husband and wife” and defining spouse as “a person of the opposite sex”).) 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.

As I spell out in my two posts linked above, Congress’s power to define the terms that it uses in legislation inheres in its very power to legislate. The idea that there is some separate “necessary and proper” inquiry that must be engaged in is a profound confusion.

3. Will recites the amicus brief’s claim that DOMA amounts to the federal exercise of a “general police power.” But the federal government’s authority to define the term marriage in provisions of federal law does not involve any assertion of a “general police power.” DOMA’s definition of marriage simply 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 if any of those other enactments are outside Congress’s power, it is those enactments, not DOMA, that fall.)

4. Will takes seriously a hypothetical offered by law professor Ernest Young (the “principal author of the federalism brief”) that aims to show how Congress could abuse its power to define marriage in a way that “would wreak [chaos] in the administration of state programs” and put undue “pressure … on states not to experiment with divorce law.” (Emphases in original.) I will readily assume that, like every power of Congress, the power of Congress to define marriage for purposes of provisions of federal law could be abused to the point of unconstitutionality. But the fact that a power might be abused is not an argument against the existence of the power. Further, there is zero evidence that DOMA has the effect of Young’s hypothetical statute. 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 absurdly hyperbolic claim 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.”

5. Will contends that “[b]y striking down DOMA …, the court would defer to 50 state governments.” But beyond the fact that federalism, properly understood, means that the states have no authority to dictate to the federal government what marriage means in provisions of federal law, the real effect of striking down DOMA would be to compel federal taxpayers in states with traditional marriage laws to subsidize same-sex marriages in other states. It’s a very strange misunderstanding of federalism that would compel such a result.


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