Tuesday, September 01, 2009

The Federalism Trap in Same-Sex Marriage Litigation

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

8 comments:

Rick said...

If the court goes with the federalism argument and ducks the equal protection claim in the DOMA suits, it still would have to address the equal protection claim in Olson’s suit. A pronouncement about state's right to define marriage in the DOMA suits, by itself, would not be a sufficient ground to dispose of the equal protection claim in Olson’s case. The other side of the double-edged sword, i.e., let’s respect and maintain the status quo in states that ban gay marriage, is not self-evident or conclusive on its constitutionality. I wonder if Professor Dorf thinks it would be of any particular consequence whether the DOMA suits or the Olson suit is heard first by the Supreme Court.

AF said...

This seems like a minor concern. The holding that a federal law infringes state sovereignty does not imply that a discriminatory state law on the same subject is constitutional under the equal protection clause.

To be sure, the Court might use the federalism argument as an excuse to reject the equal protection challenge, but it would be a lame excuse. If they are inclined to rely on an excuse that lame, they're not going to rule for same sex marriage in any event.

Michael C. Dorf said...

My point, as I tried to emphasize, is not about the technical legal consequences of a ruling on the federalism issues. It's more a matter of mood. Should the Mass case arrive first, and should a majority say all sorts of silly things about state freedom to define marriage, it will be psychologically difficult to walk that back in the EP case.

Joe said...

"silly things about state freedom to define marriage"

Well, I don't know how far this will be taken. We aren't just talking about Loving here -- cases involving inability to pay debts and prisoners also underline the limits on this "definitional" power. It's like limiting federal power on commerce power grounds. The 14A still holds.

I'm not totally clear about this argument too in that we are talking about federal benefits. The feds can "define" who can get federal benefits in various respects. This includes what unions (need not be marriage) should get them.

To my understanding, there are technical problems with DOMA that interferes with recognition of marriage that might have federalist problems. So suggest L. Tribe and others. But, if we are centering on the federal benefits, that's a harder argument.

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