Bench Memos

Re: Rank Milbankery

In addition to the smear that Matt exposes, and amidst lots of snark, Dana Milbank’s primary claim is that Justice Scalia’s stated principle that gay rights should be pursued “through normal democratic means” somehow requires that Scalia vote to invalidate the federal Defense of Marriage Act.

Milbank gets things entirely backwards. DOMA was enacted “through normal democratic means.” So Scalia would be implementing his stated principle, not violating it, in voting to uphold DOMA.  

Milbank also repeats the canard that DOMA “trampled on states’ authority to regulate marriage.” But all that Congress did through section 3 of DOMA is exercise the sovereign power of the federal government to define marriage for purposes of provisions of federal law only. DOMA leaves states free to adopt same-sex marriage laws. (That point is illustrated by the fact that nine states (and D.C.) have adopted same-sex marriage since DOMA’s enactment.) DOMA simply declines to provide a federal subsidy for those state experiments. (See points 2 and 3 here for more.)

To make this elementary federalism point another way: Why should anyone imagine that a state’s authority to regulate marriage should trample on how the federal government determines federal tax obligations, or which dependents of federal employees should receive health-care benefits, or how any of the countless other federal programs operate?


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