DOMA and Federalism: Replying to Whelan

Ed Whelan is not a fan of the law professors amicus brief in which I joined raising federalism objections to Section 3 of DOMA.  The core of our brief argues that Section 3 of DOMA exceeds the scope of federal power, and that (unlike states) the federal government cannot seek to defend Section 3 on the grounds that it wishes to protect a traditional definition of marriage.  Such matters are simply beyond the scope of federal power.  

Ed disagrees with our brief arguing, among other things, that the federal government has unquestioned authority to define terms for the purposes of federal law, and therefore there can be no federalism objection to Section 3.  (Nick Rosenkranz makes a similar argument here.)  This argument is understandable, but only goes so far.  Of course Congress may define terms in federal statutes, but it may not do so in such a way so as to exceed the scope of federal power or pursue ends not entrusted to the federal government and displace state authority. Duke law professor Ernie Young, the primary author of our brief, has a longer response to Ed and Nick on the Volokh Conspiracy.  Here is a brief excerpt:  


Congress can, of course, define terms where this is “necessary and proper” for “carrying into execution” its enumerated powers, and much of our brief is devoted to showing that DOMA cannot satisfy the various tests that the Court has developed in its Necessary and Proper Clause jurisprudence. Neither Whelan nor Rosenkranz pauses to consider those arguments, but they boil down to three points: (1) Defining marriage, in order to defend the traditional institution, is itself the primary objective of DOMA (hence the name); the definition is not “incidental” to the accomplishment of some other enumerated end, like preventing immigration fraud or conserving revenue. (2) Because DOMA applies in shotgun fashion to over 1,100 federal statutes, it is “plainly adapted” to none of them; Congress never considered, say, whether excluding same-sex couples would make ERISA run more smoothly. And (3) DOMA is not proper because it lacks any principle to limit its intrusion into the states’ core power to define familial status. . . . 


To see the harm that an unlimited federal definitional power would permit, think back to an era when much of the country disapproved of no-fault divorce but a few states had begun to experiment with the concept. Suppose Congress passed a statute refusing to recognize—for purposes of federal law—any divorce where one party had not made a showing of fault. The couple would continue to be treated as married for purposes of federal income tax, healthcare programs, and veteran’s benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law. Worse, if Whelan and Rosenkranz are right, then Congress could cite the uniform administration of federal benefit programs as a pretext for promulgating a comprehensive federal family law code to be used for all federal purposes.

That is not our federal system.

In McCulloch v. Maryland, Chief Justice John Marshall noted that “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”  There is little question that the federal Defense of Marriage Act is not about the administration of federal programs, but about defending a traditional definition of marriage.  There is also little question that such matters were not entrusted to the federal government.  Federalism is often congenial to conservative policy goals, but such is not guaranteed, and federalism should be respected even when it cuts against conservative preferences.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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