Magazine | December 31, 2012, Issue

Federalism and Marriage

David Boies and Ted Olson at a press conference, San Francisco, 2010 (Steve Rhodes/Demotix)
The Supreme Court should stay out of the way

When supporters of same-sex marriage attack the federal Defense of Marriage Act, they invoke purported federalism concerns about the authority of the states to regulate marriage. But when they sue to strike down state marriage laws as unconstitutional, those federalism concerns disappear. The Supreme Court’s recent decision to review lower-court rulings against both the Defense of Marriage Act and California’s Proposition 8, which reinstated traditional marriage in that state, provides the Court a clear opportunity to set right the relationship between marriage and federalism. It should rule that both DOMA and Prop 8 are constitutionally sound.

Let’s start with DOMA. President Clinton signed DOMA into law in 1996, after it had been approved by overwhelming majorities in Congress — 85 to 14 in the Senate and 342 to 67 in the House — including lots of strong supporters of gay rights (then-senator Joe Biden among them). DOMA defines “marriage,” for purposes of provisions of federal law only, as “a legal union between one man and one woman as husband and wife,” and it provides a corresponding definition of “spouse.”

The Supreme Court challenge to DOMA arises in U.S. v. Windsor. Edith Windsor married her longtime same-sex partner, Thea Spyer, in Canada in 2007. The two resided in New York. When Spyer died in 2009, she left her estate to Windsor. Because Windsor did not qualify as a spouse under DOMA, she was ineligible for the spousal deduction from the federal estate tax and incurred a hefty tax.

The question before the Court is whether DOMA violates the Constitution — specifically, the so-called equal-protection component that the Court has discerned in the Due Process Clause of the Fifth Amendment. (The 14th Amendment’s Equal Protection Clause applies only against the states.) In other words, is it a violation of equal-protection principles for the federal government to define “marriage,” for purposes of provisions of federal law, in a way that excludes same-sex couples who are recognized as married under the law of the state in which they reside?

In its ruling striking down DOMA, a divided Second Circuit panel, in a sloppy opinion, asserted that Congress has “historically deferred to state domestic relations laws” in applying provisions of federal law, and it condemned DOMA as “an unprecedented breach of longstanding deference to federalism.” This trumpeting of the federalism concerns raised by DOMA’s challengers cannot withstand scrutiny.

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. DOMA doesn’t intrude at all on a state’s authority to regulate marriage under state law. It doesn’t nullify or prohibit any marriages, or in any other respect preempt the operation of state law. On the contrary, it leaves the states free to define, or redefine, marriage as they please. That point is illustrated by the fact that nine states (as well as the District of Columbia) have adopted same-sex marriage since DOMA’s enactment.

DOMA’s definition of marriage merely establishes what marriage is for purposes of provisions of federal law. Under our system of federalism, the states and the federal government have sovereign authority over their respective domains. Thus, DOMA respects and implements federalism by exercising the federal government’s authority over federal law.

Congress has often found it convenient to use state-law marital status in federal laws and programs. But it has never accepted state-law marital status as constraining how those laws and programs operate, and there is no reason that it should. For example, under provisions of the Internal Revenue Code, a person who is legally separated from his spouse, but not yet divorced, is treated as unmarried, as is a person whose spouse is a nonresident alien. Likewise, under the immigration laws, a marriage entered into for the purpose of gaining an immigrant’s admission will be disregarded even though that marriage remains valid under state law. How could anyone imagine that federalism means that a state’s authority to regulate marriage for state-law purposes should intrude on how the federal government operates in these and other areas?

#page#If the federal government were somehow obligated to incorporate into provisions of federal law whatever a state defines as a marriage, that would mean 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 means 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.

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.

A proper understanding of DOMA and of federalism leads readily to the conclusion that DOMA easily satisfies the deferential “rational basis” review that the Court ordinarily applies to federal statutes. Among other things, DOMA clearly advances the federal government’s interest in uniform eligibility standards for federal benefits. Just as it is reasonable for the federal government to apply a single definition of “disability” for purposes of Social Security benefits, it is reasonable to apply the same definition of “marriage” for federal benefits generally.

DOMA’s challengers contend that the federal government’s interest in uniform eligibility is somehow undercut by the fact that DOMA ignores variations in state marriage laws on matters such as age of consent and permitted degrees of consanguinity. But this shows only that DOMA distinguishes between the components of marriage that the federal government regards as essential and those it regards as incidental. DOMA’s challengers accept this same distinction as reasonable, as they don’t object to DOMA’s requirements that a marriage be a legal union and that it be between two persons. Where they differ is only in their insistence that it is illegitimate to regard the male-female component of DOMA’s definition as an essential attribute of marriage — the very point at the heart of the constitutional attack on state marriage laws.

Which brings us to the Prop 8 case, Hollingsworth v. Perry. In 2008, in the wake of the California supreme court’s invention of a right to same-sex marriage under the state constitution, California voters adopted Prop 8 to amend the state constitution to restore the traditional definition of marriage. Two same-sex couples, represented by the strange-bedfellows legal duo of Ted Olson and David Boies, sued to invalidate Prop 8, claiming that it violated the federal constitution.

Federal district judge Vaughn Walker capped off his astounding course of misconduct in the Prop 8 case — misconduct that led to his decrees’ being reversed three times (including once by the Supreme Court) before his final judgment was even presented for appellate review — by declaring Prop 8 invalid on the broad ground that state marriage laws that exclude same-sex couples violate the equal-protection and due-process guarantees of the 14th Amendment. (Only after Walker finished with the case and retired from the bench did he disclose that he was in the midst of a long-term same-sex relationship — which means that he had been ruling on his own legal right to marry his same-sex partner, which may explain the bias that he showed during the entire proceeding.)

On appeal, a divided Ninth Circuit panel, led by the notorious liberal arch-activist Stephen Reinhardt, undertook to invalidate Prop 8 on a purportedly more narrow ground. (Unbelievably, Reinhardt failed to disqualify himself from the case even though his wife, Ramona Ripston, directed an ACLU affiliate that had filed briefs in support of the Prop 8 challengers in Walker’s courtroom, and had publicly celebrated Walker’s ruling.) According to Reinhardt, the particular context in California — same-sex couples under the state’s domestic-partnership law had all the rights of marriage, and Prop 8 restored the definition of marriage that the state supreme court had invalidated — meant that there was no “legitimate reason” for Prop 8.

#page#It’s obvious that Reinhardt designed his ruling to try to immunize it from Supreme Court review and, failing that, to hoodwink his former Ninth Circuit colleague, Justice Anthony Kennedy, into providing the critical vote to affirm his ruling. Reinhardt missed his first goal, and he ought to miss his second. He claimed to be tracking Kennedy’s analysis in the 1996 case of Romer v. Evans, which struck down a Colorado constitutional amendment that imposed a comprehensive ban on all legislative, executive, or judicial action designed to protect gays and lesbians.

But Reinhardt’s reasoning departs dramatically from Kennedy’s on all the key points. Kennedy explained that the Colorado law was “unprecedented in our jurisprudence,” that it imposed a “broad and undifferentiated disability on a single named group,” and that its “sheer breadth . . . seems inexplicable by anything but animus.” In contrast, the traditional definition of marriage that Prop 8 restored has deep roots in American jurisprudence; by Reinhardt’s own account, Prop 8 has a “unique and strictly limited effect” and “made a singular and limited change”; and Reinhardt himself disclaims the suggestion that Prop 8 was motivated by “ill will.”

Reinhardt’s approach would also have perverse effects on federalism. By seeming to render irrevocable any state experiment with the definition of marriage, it would tend to freeze in place existing redefinitions. Further, if a state’s adoption of domestic-partnership laws undermines its ability to retain traditional marriage, then the state may be deterred from providing any recognition of same-sex relationships or may be forced to an all-or-nothing choice.

On any sound understanding of the Constitution, the Prop 8 case is easy. The Constitution does not speak to the question of same-sex marriage, but instead leaves the matter to the processes of representative government for resolution. Under our system of federalism, it’s permissible for the states to retain traditional marriage, and it’s permissible for them to revise the definition of marriage to encompass same-sex couples. It’s not the proper business of the Court either to require states to adopt same-sex marriage or to prohibit them from doing so

Alas, the fact that the DOMA and Prop 8 cases ought to be easy provides no assurance that the Court will get them right. The Court has many times strayed far from the Constitution, and in so doing it has accumulated malleable precedents that invite more straying. Much ink will be spilled in the coming months over whether DOMA and Prop 8 should be subject to “heightened” scrutiny or an “intensified” version of rational-basis review, whether homosexuals constitute a “suspect” or “quasi-suspect” class, and so on. These inquiries, which inevitably turn on subjective and flexible considerations, have no intellectual integrity and, when they yield results incompatible with the fair meaning of the Constitution, have no legitimacy. But that doesn’t matter: Any justices intent on invalidating DOMA and Prop 8 will simply reverse-engineer whatever standard of review they believe provides them adequate cover.

Many people seem to forget that, in addition to being a guardian of federalism and other constitutional boundaries, the Supreme Court sits atop one branch of the federal government and is thus sometimes a player in the very game that it is umpiring. If the Court invalidates DOMA, it would violate the federal separation-of-powers principles that it is charged with defending. And if it invents a federal constitutional right to same-sex marriage, or otherwise impairs the ability of the states to preserve traditional marriage, that would be the real and grave intrusion on federalism.

For better or worse, state experimentation with the novelty of same-sex marriage is proceeding apace. Those of us with strong policy views on either side of the question will not likely be inclined to be content with the current state of affairs. But one of the great virtues of federalism is that it allows the citizens of the various states to pursue the different policies that make sense to them and to learn from their own, and one another’s, experiences.

As the years pass, it may become increasingly clear that same-sex marriage was a wonderful innovation, or a tragic folly, or something in between. And if the Court has the sound judgment to stay out of the way, we will retain the ability to revise the marriage policies in our states so that they reflect the lessons we have learned.

– Mr. Whelan, a regular contributor to National Review Online’s blog Bench Memos, is the president of the Ethics and Public Policy Center.

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