National Review / Digital
Federalism and Marriage
The Supreme Court should stay out of the way

David Boies and Ted Olson at a press conference, San Francisco, 2010 (Steve Rhodes/Demotix)


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.

December 31, 2012    |     Volume LXIV, No. 24

Books, Arts & Manners
  • William Voegeli reviews A Nation of Takers: America’s Entitlement Epidemic, by Nicholas Eberstadt.
  • Rob Long reviews The Joy of Hate: How to Triumph over Whiners in the Age of Phony Outrage, by Greg Gutfeld.
  • Florence King reviews The End of Men and the Rise of Women, by Hanna Rosin.
  • Bruce Cole reviews Glittering Images: A Journey through Art from Egypt to Star Wars, by Camille Paglia.
  • Robert Dean Lurie reviews Who I Am: A Memoir, by Pete Townshend.
  • Ross Douthat reviews The Hobbit: An Unexpected Journey.
The Long View  .  .  .  .  .  .  .  .  
Athwart  .  .  .  .  .  .  .  .  
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