Saturday, March 30, 2013

The "Defense of Children Act": Making More Sense of the Freestanding Federalism Argument in Windsor

By Mike Dorf

Thanks to readers for a lively debate on my post on the federalism argument in the DOMA case.  As I noted in the original post and in reply to various comments, I'm not persuaded by the federalism argument standing alone (as opposed to the argument that federalism issues knock out potentially otherwise-legitimate grounds for states barring SSM.  That seems to me a stronger argument, but I have a hard time evaluating it because I think the potentially otherwise-legitimate grounds do not in fact justify laws barring SSM).  However, some commenters suggested that the freestanding federalism argument is crazy or incomprehensible.  I don't go that far so I've been trying to think of a hypothetical example that might make the case for the freestanding federalism argument more forcefully.  I've come up with the following:

Suppose that, following United States v. Lopez, Congress enacted the "Defense of Children Act" (or DOCA).  DOCA defines marriage for purposes of federal law as excluding all marriages in which any children, grandchildren or great-grandchildren of either spouse attend a public or private school that is not protected by a state Gun Free School Zones Act.  Valid?

I think not.  Sure, other things being equal, Congress has the power to define the terms of federal laws, including marriage (or, following Justice Alito's suggestion, any term used as a substitute for marriage).  However, under McCulloch, Congress may not use that power pretextually.  And here that's pretty obviously what Congress is doing.  Under Lopez, Congress may not directly enact the Gun Free School Zones Act.  And under New York v. United States, Congress may not "commandeer" the states by requiring them to enact laws as a means of circumventing the limits on the affirmative powers of Congress.  So . . . it follows that Congress may not, under the guise of defining the terms of a federal statute, pressure the states adopt a law it could not directly require them to adopt.

What exactly do I mean by "pressure"?  If I were trying to come up with a test here, I think I'd simply borrow the test under the Spending Clause articulated in South Dakota v. Dole and applied to invalidate the Medicaid extension rules in the ACA case (even though I think the latter was a misapplication of the doctrine).  The idea would be that Congress may not use its power to define terms of federal statutes in order to "coerce" states into changing their laws.  My hypothetical DOCA appears to do just that.

Does the actual DOMA?  I tend to think not--and we have pretty good evidence of that fact: States have adopted same-sex marriage largely undeterred by the fact that in doing so, they are not penalized by DOMA; their same-sex couples simply don't get the benefits of being treated as married under federal law.  For similar reasons, I think a federal law extending marital benefits to same-sex couples regardless of state law--what I called the Defense of Same-Sex Marriage Act (or DOSSMA) in my last post on the subject--would be permissible.  So too, to use an example offered by a reader in a comment, would a federal law in the early Republic defining "property" under federal law to exclude slaves.

All of the foregoing is simply another way of affirming my view that the freestanding federalism argument against DOMA should fail.  But I don't think it's a slam-dunk, mostly because my understanding of DOMA as a failure to extend rather than a penalty depends on a fairly arbitrary baseline assumption.  At the margin, we can well imagine that DOMA would discourage states from adopting same-sex marriage, just as DOSSMA would encourage them to adopt it.

Moreover, it's not obvious that I'm right that the test for pretext should be equivalent to the test for coercion under the Spending Clause.  Maybe the federal government is simply forbidden from pursuing policies that are tied up in the exercise of the states' reserved powers.  In that case, DOMA, DOSSMA, and even the slaves-aren't-property law would all be invalid as beyond the enumerated powers.  In a time when the Constitution was widely regarded as protecting property in slaves, it would not have been so odd for Congress to be seen as lacking the power to de-property-ize slaves under federal law.  Immoral, sure.  But not necessarily odd.

Or perhaps the test is one of motive: When, as in DOMA, the language and context of federal law defining terms clearly pursues a policy with respect to a reserved power, it's beyond the scope of federal power.  That also wouldn't be crazy.  The very idea of "pretext" suggests some inquiry into motive.

Again, I want to be clear that I'm not persuaded by any of these arguments.  I think DOMA is invalid because I think it denies equal protection but I think that as a matter of federalism, the federal government otherwise has broad power to define the terms of its statutes.  But I continue to think the contrary argument is merely wrong, not crazy.

33 comments:

pvineman1 said...

Been trying, on the VC blog, to knock down the anti-DOMA federalism theory on the basis of no (or, at least, insufficient) "coercion." Not many receptive ears over there. Glad to see someone is viewing the issue in a similar way.

Hashim said...

Mike,

Here's yet another problem w/ the federalism theory: McCulloch's pretext inquiry doesn't apply to many (if not most) applications of DOMA, since the underlying statutes are direct exercises of enumerated powers rather than N&P legislation.

Take, for example, the scope of the estate-tax exemption at issue in Windsor itself. That is a direct exercise of the power to tax and spend. Congress' decision of whom to tax does not depend in any way on the N&P clause. And per NFIB and myriad other cases cited therein, Congress can choose to tax things beyond the scope of its power to regulate, subject to exceedingly narrow limits.

Of course, the broader point is the more fundamental one: there's nothing "pretextual" about the federal govt disassociating itself from state law. That's not trying to regulate the States (as in your hypo), but trying to avoid being regulated by the States.

Joe said...

Yes, take the estate tax exemption.

Alito's question (I support Windsor but note he asked some good questions, as he often does) on the basis of the exemption was very helpful. I failed to understand from the reply how DOMA did much to truly advance the interests.

It is a "pretext" that it really does & Kagan brought out the true purpose -- to "defend" a certain form of marriage because same sex marriage is deemed immoral. Congress doesn't care at all about state changing marriage as traditionally understood EXCEPT here, since SSM is deemed immoral.

Let's be honest here and have the courage to respect what Congress was doing. I understand Clement rather not -- animus would hurt his case -- but we are adults here, men of action (Princess Bride). We need not pretend.

Robert said...

If DOMA is struck down, will I get to re-file my tax returns (assuming its in my favor) for the past years when I was married in CA but not the Federal Government?

Publius the Clown said...

Professor Dorf, you make a really interesting point here. After reading it, my analysis is somewhat different but overlaps with yours.

I don't think the problem can be that DOMA, or any other definitional statute (including your hypothetical DOCA), is pretextual. A law that defines terms in a statute is plainly adapted to achieve whatever the end of the statute is, by definition (as it were). That's because, whatever the definition is, its purpose is to describe the meaning and reach of the underlying statute. In other words, the act of defining terms in a statute can't be pretextual because it's never pretextual.

But your commandeering point makes sense. In fact, Congress could make the definition even more extreme, by saying that marriage shall be defined as marriage within a state that has certain laws, and then list an entire state code full of laws (whether related to marriage or having nothing to do with marriage) that states would then have to adopt in order for their citizens' marriages to be recognized. That can't be permissible.

I agree, though, that DOMA doesn't do that. It doesn't commandeer the states at all. It just says that, whatever the states do, the federal government won't recognize gay marriage (and that states don't have to recognize each other's marriages).

Michael C. Dorf said...

Robert's question is really two questions: 1) Would a ruling invalidating DOMA Sec. 3 be retroactive? 2) Even if so, might there be procedural obstacles to using the decision, such as the statute of limitations, etc.?

As to 1), in general, when the SCOTUS invalidates a law as unconstitutional, that ruling applies to other similarly situated persons, so there would be a class of people who are married under state law who would be entitled to take advantage of the ruling. But, per 2), many of them may well be barred by IRS rules and other procedural mechanisms limiting the time in which tax returns may be amended.

The Brown v. Board of Education litigation is a useful comparison. Although the Court ordered the desegregation of schools "with all deliberate speed," people who attended unconstitutionally segregated schools did not get damages.

While it may seem unfair to limit constitutional remedies in this way, doing so has an important effect: It removes a disincentive from the Court's recognizing violations.

Scott Martin said...

It's not entirely clear to me that a failure to coerce in practice rules out a judgement that a law is coercive in principle. The defiant states might simply be showing admirable political will in the face of coercion. Has the Court articulated a standard that clarifies this?

pvineman1 said...

Given the national landscape in 1996 -- No state had extended "marriage" to same-sex couples -- what was the objectively assessed primary purpose of DOMA3's defining "marriage"(as that term is used in 1100 validly enacted federal statutes)?

Was it to coerce, pressure or even encourage states not to extend their definitions of marriage to include same-sex couples? Was it to penalize states that engaged in any such redefinition? Both purposes would make DOMA3 constitutionally suspect under federalism principles.

Or, was it to clarify that, regardless of what any state decides to do regarding SSM, no federal benefit or right (that arises pursuant to the term "marriage" in any of the 1100 duly enacted federal statutes) would be extended to persons in state-sanctioned SSM? Thereby making DOMA3 constitutionally vulnerable under equal protection scrutiny.

So what evidence should the Court look at to divine DOMA3's primary purpose and, in turn, the doctrine that is best applied to assess its constitutionality? I would offer the following:

1. What light, if any, does the congressional record shed on this issue? From my understanding, not a single legislator who opposed DOMA3 voiced any concern that would remotely touch upon federalism principles. Indeed, the overwhelming opposition to DOMA3 was that it visited blatant discrimination on same-sex couples in violation of equal protection.

2. Is there any evidence (or allegation in any brief filed with the Court) that any state did not extend a right to marry to same-sex couples because of a fear or apprehension of federal government retribution of any kind?

3. Is there any evidence that any state that has issued "marriage" licenses to same-sex couples has, in fact, suffered harm at the hands of the federal government because they defined "marriage" differently than DOMA3?

4. Is there any evidence that states that have adhered to DOMA3's definition of "marriage" have been treated in a more beneficent manner by the feds because of their "compliance"?

I think the answers to the questions I pose are self-evident. And a anti-DOMA3 federalism argument premised upon the "coercion" test should be soundly rejected.

In my mind, that leaves one possible basis to support the ant-DOMA3 federalism argument: The federal government is simply forbidden from enacting laws that have a close nexus to areas of traditional state concern that are, historically, reserved exclusively to the states free from any federal interference. Frankly, I don't see any justice accepting such a potentially far-reaching limitation on congressional power.

Ultimately, when Justice Kennedy works his way through the anti-DOMA3 federalism theory, I believe he will realize that it is unsupported and too far-reaching to accept. And, assuming standing is met, his opinion will only "write" as an equal protection case.

matt30 said...

Yes! This was essentially what I was trying to say but more elegantly stated.

matt30 said...

Hashim,

I don't think there's much weight to the argument that some laws are "direct" exercises of a power while more tangential laws (whatever that means) are merely authorized by N&P. It seems to me that every exercise of a power is "necessary and proper" and every "necessary and proper" law is a direct exercise of power. Rehnquist wouldn't have had it any other way.

I also think it's absurd to say that mere disassociation from a state law (or potential state law) cannot ever have a pretext. The very fact that you say the federal government is trying to avoid "being regulated" on an issue where states have plenary power should say something. Especially since that avoidance has no legitimate federal purpose.

Publius the Clown said...

@matt30: But states don't have plenary power to define the scope of federal benefits and liabilities. They only have plenary power to define marriage for purposes of state law--a power that no one challenges.

A definitional statute is always plainly adapted to an underlying statute because the definitional statute doesn't do anything other than what the underlying statute does. It can't be pretextual because it's not an independent use of congressional power in the first place.

Andrew Hyman said...

Suppose that DOMA had said: "The word 'marriage' throughout the U.S. Code is hereby replaced with the word 'nofags' which is defined as a union of husband and wife." Would that exceed the enumerated powers of Congress?

One could go on and on about this hypothetical. But whatever conclusion you come to, the main point is that the word "nofags" is vastly different from the word "marriage". Congress would not in a million years use a word like "nofags". Given that most states define the word "marriage" to include only a man and woman, using the word "marriage" is the best word for purposes of uniformity. Even better than Justice Alito's "certified domestic units", and vastly better than "nofags".

DOMA's title ("Defense of Marriage Act") very likely refers to "defense" of the many substantive things accomplished by DOMA (e.g. limiting tax benefits to opposite sex couples), independent of whether DOMA replaced the word "marriage" in federal law with some other word, or not.

If DOMA's restriction of the word "marriage" to opposite sex couples can be construed as an insult to gay married couples, certainly it is a very mild one, certainly more mild than what DOMA actually does substantively, and certainly no less mild than the centuries-old restriction of "marriage" to opposite-sex couples.

In the process of using it's enumerated powers, I would think that all choices of vocabulary are strongly presumed to be legitimate, even if not politically correct, and even if mildly displeasing.

The very name of our country, the "United States of America" is slightly offensive to some people in Central America and South America, but we all manage to live with it, and no judge in his right mind would strike down the statutes that mention it. If a federal statute were to substitute "United Caucasians of America" for "United States of America" then we might (or might not) have an enumerated powers problem.

In sum, I think that the so-called "federalism" objection to DOMA is not just mistaken, but borders on frivolous. Does the federal definition of "marriage" hurt the feelings of some children of gay parents? Maybe slightly. But, if so, it hurts the children of polygamous parents too.

DOMA does not forbid any state laws, and does not commandeer states in any way, so I'm having a hard time seeing why it might violate the reserved rights of the states, just because it says "marriage" instead of "marredge".

Joe said...

When knocking down a weak argument, perhaps making fun of and/or diminishing the harm to children from not providing a slew of federal benefits and having the nation go out of its way not to call their parents' union a marriage and use of crude epithets is not the best way to go?

The last comment again demeans the actual law by trying to have us believe the law didn't do what the people who supported it Congress are on record saying it did:

announce that gays are immoral and that same sex marriage isn't really marriage. That is what they were "defending," not specific benefits, such as denying the feds taxes (the marriage penalty) or letting same sex couples get out of conflict of interest rules.

This "borders on frivolous." As the 1CA ruling in Gil noted, DOMA causes SSM states costs that non-SSM states do not have. This very well might not be unconstitutional coercion, but if the argument is so darn frivolous, why the need for such risible and offensive comments?

Doth protest too much.

Andrew Hyman said...

Joe, when I said that the federal definition of "marriage" might slightly hurt the feelings of some children of gay parents, I was referring to the definition itself, not to the definition's effects. That's really my whole point. A different choice of words in the statute (like "certified domestic unit") would have resulted in the same effects upon the "slew of benefits" that you mistakenly thought I was referring to. That's why it's frivolous to argue that the statute would have been fine if only it had spoken of "certified domestic units".

Andrew Hyman said...

Incidentally, I think 41 states also prefer to call a same sex marriage something other than "marriage", and it's not clear to me that that's a judgment about morality. It could equally be a judgment that one thing is simply not the same as the other. If two things are not the same, maybe that's a good reason not to use the same word for both.

Justice Kennedy once wrote: "Respect for human life finds an ultimate expression in the bond of love the mother has for her child." I would not rule out that there are state and federal legislators who want to do what they lawfully can do to defend that bond.

pvineman1 said...

As I see it, in enacting DOMA3 Congress stated and did the following:

1. We believe SSM is wrong;

2. Therefore, we will not extend 1100 federal benefits and rights (each of which was constitutionally enacted pursuant to an enumerated power, or was N&P to effectuate such a power) to partners in a SSM, that we provide to OSM partners; and

3. We hope that (1) & (2) will persuade states not to recognize SSM.

Clearly, if DOMA3 only stated (1) it would violate federalism principles as not being related to the exercise of any enumerated power.

And by combining (1) with (2), DOMA3 doesn't violate federalism. As stated in my earlier post, the refusal to extend these federal benefits and rights to partners in state-sanctioned SSM, Congress did not, by this action alone, commandeer, coerce or pressure any state to adhere to the traditional definition of marriage. And this conclusion does not change because (2) is coupled with (1). The combination of (1) and (2) clearly evinces discrimination in violation of EP, but it does not raise federalism concerns under a "coercion" theory.

Lastly, the fact that Congress hoped to persuade the states -- none of which had authorized SSM as of 1996 -- not to permit SSM does not raise federalism concerns. Persuasion is not compulsion (See NFIB). A fortiori, a mere desire to persuade is of no import.

Assuming standing is met, DOMA3 will fall on EP grounds, regardless what level of scrutiny is applied.

Although, on its surface, the anti-DOMA3 federalism theory has some intuitive appeal. It collapses under closer examination.

pvineman1 said...

Question for Prof. Dorf or anyone else:

The Court didn't grant cert. in Windsor on the federalism question. Only on EP and standing.

Does Rule 14.1 preclude the Court from relying solely upon the federalism theory in striking down DOMA3?

If 14.1 doesn't preclude this from happening, are there any other rules or principles that the Court has set forth that make it imprudent or unfair for the Court to use federalism as the sole basis to overturn DOMA?

The federalism theory was almost exclusively the product of the law professors' amicus brief. It was barely touched upon by the petitioner and respondent in their briefs. And while it was mentioned tangentially in the lower court's opinions, those opinions focused on the substantive issue that cert. was granted to address: Equal Protection and standing.

If a majority of the Court believes that the federalism issue is of substantial import, shouldn't the Court at least afford the petitioner and the respondent a full opportunity to file merit briefs, and oral argument, on that issue?

Michael C. Dorf said...

pvineman1 asks whether the Court can/should decide Windsor based on the federalism argument. The Court's practice on this point is inconsistent. Sometimes the Court or individual Justices will refuse to consider a point on the ground that it is outside the scope of the cert question. But at other times they have gone beyond the cert question, especially when there is fair notice to the parties of the argument at issue and there is some special reason for doing so, like constitutional avoidance. Justice Kennedy suggested that here there is a kind of constitutional avoidance: Deciding the case on federalism grounds would be deciding it on constitutional grounds but on less contentious constitutional grounds than equal protection. Is there a cousin doctrine to constitutional avoidance of this sort? Perhaps, but I don't recall seeing it articulated in quite that way.

Andrew Hyman said...

Rule 14.1 includes this: "Only the question set out in the petition, or fairly included therein, will be considered by the Court."

The question in the petition was: "Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State."

The grant said: "In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’'s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

Michael C. Dorf said...

Andrew Hyman correctly quotes the rule but as I said, the Court does not always honor it.

Andrew Hyman said...

I guess if the parties won't be briefing the federalism issue, the First Circuit's treatment of it becomes more useful (682 F.3d 1, 12):

"Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom. That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.
          "Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 188 (1992). Whatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command."

If some of the liberal justices sign on to the federalism argument, this remark by Jack Balkin seems pertinent: "There is, of course, an additional objection to liberals invoking federalism and state sovereignty as a reason to invalidate section 3: they don't really mean it. Liberals do not object to a federal definition of marriage. They just don't like the definition that section 3 sets forth."

I'm not wedded to DOMA, and won't be sobbing if it eventually goes down the drain. But it is galling to think that judges might do the honors, using such a weak rationale. On the other hand, if DOMA is still around in ten years, then I don't see that as a big problem.

Rand Paul's solution is interesting: simply revise the US Code so that it does not say or imply anything about marriage. Of course, a sensible compromise like that would be defeated if SCOTUS cannot keep their hands off this social issue (deja vu).



pvineman1 said...

The Court's cases discussing Rule 14.1 state that it should be deviated from only in extraordinary circumstances, such as when the Court's opinion is urgently needed.

There are no extraordinary circumstances in Windsor justifying the Court's departure from the rule -- a rule whose purpose is to ensure fairness by affording the parties to the litigation -- the petitioner and the respondent -- notice of the issues to addressed by the Court and a full and fair opportunity to brief and argue those issues. In Windsor the federalism issue came in through the back door via the federalism professors' amicus brief.

In fact, if Justice Kennedy is concerned with proceeding too fast in this rapidly evolving area, setting this case for reargument and supplemental briefing on the federalism issue (as was done in Citizens United) would seem to buy his cautious side some time and provide the fairness required by Rule 14.1.

Can anyone suggest a good reason for the Court not to take the course that I am suggesting?

Andrew Hyman said...

How many votes are required for reargument and supplemental briefing? I imagine that such a course is very rare for addressing a question that is being seriously entertained by only one justice. And maybe he's not seriously entertaining it any more.

If the whole "federalism" issue boils down to whether the US Code should have used some other term instead of "marriage" (e.g. "certified domestic unit") then perhaps some justices consider the issue too frivolous for reargument.

Joe said...

I was referring to the definition itself, not to the definition's effects. That's really my whole point.

The law was not intended to nor does it work in some sort of vacuum. That's really my whole point. Let's not pretend here this is all some big thought experiment. This goes to the 41 states that don't protect SSM, including one that doesn't even let same sex couples as a unit adopt. They do so for a reason, and it's invidious.

I think not that I "mistake" anything here of the core of the matter. Mere word choice is not all that is here. It is the whole thing and that is what the anti-DOMA side ultimately rest on.

Andrew Hyman said...

Joe, there are two separate substantive issues here: federalism and equal protection. And there are also two cases: DOMA and Prop. 8. So the federalism issue is only one slice of the pie. And as far as I have been able to discern, the federalism slice deals with whether the US Code should have defined and used a word other than marriage. Right? Is anyone arguing that there would be a federalism issue if DOMA had done the same substantive things while avoiding a definition of the word "marriage"?

Also, I really see no problem with what California has done. They confer the same exact substantive benefits on civil unions as on traditional marriages, and the rest is just a matter of semantics. But if California wants to change the "civil unions" to "marriages" then more power to them. The judiciary has no business forcing it though, in my seldom-sought-after opinion. I don't see why a state should be forced to call a rose a tulip, or a man a woman, or a civil union a marriage. Certainly the authors of the 14th Anendment didn't have such a policy in 1868.

pvineman1 said...

5 votes are required for reargument. The Court has inherent authority to order reargument for a variety of reasons, i.e., a desire for more time; supplemental briefing, including issues that the Court raises sua sponte; a new justice joins the Court after the initial argument. And the Court has ordered reargument on a wide variety of cases, although it is relatively rare.

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Cicy said...

But your commandeering point makes sense. In fact, Congress could make the definition even more extreme, by saying that marriage shall be defined as marriage within a state that has certain laws, and then list an entire state code full of laws (whether related to marriage or having nothing to do with marriage) that states would then have to adopt in order for their citizens' marriages to be recognized. That can't be permissible

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