As a recent article in the National Law Journal points out, although the Boies/Olson litigation in federal court in California has gotten more press attention, litigation currently pending in federal court in Massachusetts may win the race to the Supreme Court. The Massachusetts cases challenge Section 3 of the Defense of Marriage Act (DOMA), which defines marriage as opposite-sex marriage for purposes of federal law. As a consequence, same-sex couples who are married in Massachusetts are ineligible for various federal benefits available to opposite-sex married couples.
The NLJ article (accurately) quotes me fretting about the risk that the Justices will not think the time is right to invalidate DOMA. But (as I also discussed with the article's author, Marcia Coyle), there is another risk as well: Massachusetts, which has also sued, could win on state sovereignty grounds. Hoping to duck the direct issue of same-sex marriage, the Court could hold that Congress has no business defining marriage because the law of domestic relations is within the reserved powers of the states. Indeed, Massachusetts urges just this result. Yet winning in this way would be a double-edged sword: If the Court strikes down DOMA Section 3 on the ground that the states get to define marriage, that very holding will be invoked by states that do not recognize same-sex marriage in resisting an argument that their laws deny equal protection.
As a technical matter, it would be possible for the Court to hold that DOMA Section 3 exceeds congressional power because the states get to define marriage, while leaving open the possibility that a state's denial of same-sex marriage violates equal protection. After all, no one expects that even if Massachusetts wins, that will entail the overruling of Loving v. Virginia, which invalidated laws banning interracial marriage. The winning federalism argument for Massachusetts---if there is one---would have to be that the Constitution sets a floor requiring the states to recognize some marriages, but that state laws granting recognition beyond that floor must be taken as definitive by Congress.
However, if the Justices are attracted to the federalism argument as a means of ducking the equal protection argument, there is a serious risk that they will say something about the primacy of state regulation of marriage that would then stand as an obstacle to the equal protection attack in a future case. The risk of the equal protection argument being offered against DOMA and California's Prop 8 is that it may fail, and thus set a bad precedent that will reverse the momentum on same-sex marriage. The risk of the federalism argument is that it might succeed.
Posted by Mike Dorf