Tuesday, July 23, 2013

Alberto Gonzales and David Strange Are Wrong About SSM and Immigration

By Mike Dorf

In a NYTimes Op-Ed last week, former Attorney General Alberto Gonzales and immigration attorney David Strange argue that a three-decades-old decision of the U.S. Court of Appeals for the Ninth Circuit--Adams v. Howerton--obligates the Obama Administration to exclude same-sex spouses of U.S. citizens at the border, notwithstanding the Supreme Court’s invalidation of the Defense of Marriage Act in the Windsor case last month.  I think they are wrong for a number of reasons.

(1) Adams is not and never was binding on the whole country.  At most it was binding in the states comprising the Ninth Circuit--although even then, there is at least some authority for the executive branch adopting a uniform national policy even though it contradicts the law in particular circuits.  I'm not a big fan of this "non-compliance" approach when (as during the Reagan Administration) it puts individuals to the expense of bringing lawsuits to vindicate their rights, but it seems to me quite different when, as here, the government would be providing people with more rights than the court in some circuit says they're entitled to.

(2) Adams was based in part on deference to the executive branch.  The Ninth Circuit stated:
Where a statute has been interpreted by the agency charged with its enforcement, we are ordinarily required to accord substantial deference to that construction, and should follow it "unless there are compelling indications that it is wrong." [citations].  Thus, we must be mindful that the INS, in carrying out its broad responsibilities, has interpreted the term "spouse" to exclude a person entering a homosexual marriage.
To be sure, the Ninth Circuit went on to find independent support for the conclusion that the statute, standing alone, was sufficient to render same-sex spouses ineligible for the immigration status that otherwise-similarly-situated opposite-sex spouses are entitled to.  But the Ninth Circuit did not say--because it had no occasion to say--whether the statute was so clear that it would render the Obama Administration's position invalid.

(3) Windsor supersedes Adams.  Gonzales and Strange argue that Windsor is irrelevant because Adams relied on the immigration statute itself, not the Defense of Marriage Act, for its conclusion that in the immigration context, Congress meant "spouse" to cover only traditional opposite-sex spouses. Perhaps Windsor should have left that option open but it didn't.  The Court's analysis proceeded in three steps: (i) The Court acknowledged that Congress has, in some instances, expressly adopted a federal definition of marriage (or other domestic relations terms) in the exercise of its enumerated powers; but (ii) went on to say that, in light of the states' traditional reserved power over domestic relations, federal courts have treated federal law as incorporating state law definitions of marriage; and (iii) invalidated DOMA on equal protection grounds.  Crucially, the Court then simply affirmed the Second Circuit ruling, which in turn affirmed the district court ruling that treated Windsor as a spouse for purposes of federal taxation law.  The Court did not undertake any further inquiry into whether the Congress that enacted the estate tax meant to limit the spousal exception to opposite-sex spouses. 

Consequently, and in light of (i), as a matter of statutory construction, Windsor is best read for the proposition that where a federal statute uses the word "spouse" but does not expressly indicate whether it thereby means to include or exclude same-sex spouses, it should be read to incorporate state law.  (I say this is how to read Windsor as a matter of statutory construction because, as a matter of constitutional equal protection, Windsor may have implications for whether state law must recognize SSM.  In dissent, Justice Scalia thought it would, while CJ Roberts thought it should not.  Time will tell.)

Therefore, to the extent that Gonzales and Strange are making the argument that even absent DOMA, each federal statute that uses the term spouse must be parsed to determine whether the Congress that enacted it meant to include or exclude same-sex spouses, I think they are plainly wrong.  Windsor establishes a presumption in favor of incorporation of state law that only express statutory language can overcome.  And the federal immigration law contains no relevant express statutory language.

(4) Perhaps, however, Gonzales and Strange could be read to say that while Windsor generally means that federal law follows state law on the definition of marriage, immigration is different.  They refer to the so-called "plenary power doctrine," stating that "Congress has almost total power over immigration, and its decisions in this realm are subject to limited judicial review."  Fair enough, but that still leaves us with the question of what Congress did with respect to immigration.  And it's important to remember that Congress no more expressly barred same-sex spouses here than it did in the estate tax.

Gonzales and Strange endorse the reasoning of the 1982 Ninth Circuit opinion in Adams, but that opinion in turn relied on the subjective animus of Congress.  The Ninth Circuit said that when, in 1965, Congress expressly made an alien's homosexuality a ground for affirmative exclusion from the country, even if he or she was otherwise eligible to immigrate, it could not possibly have also meant to include same-sex spouses under the preferential treatment for family members of citizens.  I think that's undoubtedly a fair inference insofar as inferring the subjective intent of the Congress that wrote the current version of the immigration statute is concerned.  But there's nothing in that line of analysis that distinguishes immigration law from any other federal law.  The Congresses that wrote "spouse" in the thousand-some-odd other federal statutes also undoubtedly had in mind to exclude same-sex spouses.  But unless they said so expressly--and without animus, if that is possible--under Windsor, state law prevails.

(5) My point in (4) is that simply as a matter of post-Windsor statutory construction, same-sex spouses should count as spouses for immigration purposes.  The plenary power doctrine might come into play if, contrary to that analysis, one were to say that Congress did define spouse in the immigration context as limited to opposite-sex spouses.  At that point, the question would arise whether an equal protection challenge could prevail.  There is authority for upholding immigration laws against challenges based in constitutional rights when laws addressing other topics would be invalidated based on challenges of equal strength.  I think some of that authority is misguided, but Gonzales and Strange are right that it exists.  However, as I've endeavored to demonstrate, it's largely irrelevant, because one doesn't get to the constitutional question: As a matter of statutory construction, Windsor means that absent express language otherwise, spouse includes state-recognized same-sex spouse.

(6) At the very least, the Administration's policy to that effect is within the realm of permissible interpretations, and thus entitled to deference from the courts.  Given his association with a past Administration that believed strongly in judicial deference to executive authority, Alberto Gonzales ought to recognize as much.


  1. Mike,

    What page(s) in Windsor adopts an "express" statement requirement for interpreting the word "spouse" in a specific federal statute to mean something other than "married under state law"? I don't see such a statutory interpretation holding anywhere in the opinion. Indeed, I don't see the opinion even purport to interpret the underlying estate-tax law. The closest the opinion comes is on p.17, where it claims that the Federal Govt has traditionally deferred to state domestic-relations law: but even that paragraph cites only a single statutory-interpretation case involving the Copyright Act, which does not appear to have employed any express-statement rule.

    Rather, Windsor merely seems *to assume* that, absent DOMA, a marriage recognized by NY would count as a marriage for purposes of the estate-tax law. I'm guessing that's because the assumption was never challenged in the SCt, and likely wasn't challenged in the courts below. Accordingly, it seems a bit much to construe Windsor as sub silentio adopting a statutory interpretation presumption that applies to all federal statutes.

    At an absolute minimum, I don't think Windsor speaks clearly enough about the statutory-interpretation issue to abrogate prior circuit precedent to the contrary. See Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc).

  2. PS. If you're right, and a State allowed polygamy, then many federal statutes would apply to all the spouses, since I imagine none of them *expressly* exclude polygamous marriages and many of them would be compatible with more than one spouse. To the contrary, however, I think it's beyond obvious that the Congresses that passed these various statutes mentioning "spouses" did not intend to include polygamous marriages for purposes of federal law, regardless of whatever some random State chose to allow for purposes of state law.

  3. P. 15 of the slip opinion cites an immigration provision and a Social Security provision, each of which expressly sets up a federal definition. By implication from the rest of Justice Kennedy's opinion, in general, when Congress uses the generic terms "spouse," "husband" or "wife," state law is incorporated by reference. I don't see how one can possibly read Windsor as allowing that individual cases must now be brought involving each of the 1000+ federal statutes that use such language--and that there won't be a presumption in favor of state law.

    In my view, the best way to implement the presumption would be to require express language to overcome it--language which itself would be potentially vulnerable as animus-based on EP grounds but at least would remove the presumption. Now, whether something other than express language could overcome such a presumption might be an open question, but I doubt VERY much that the Court that decided Windsor would read any federal statute using generic "spouse"-type language as overriding a state definition that includes SSM.

  4. Hash, as to your PS: I agree that it's beyond obvious that Congress intended "spouse" language not to include polygamy, but I think it's also obvious that any such language in statutes enacted before, say, 2010, was intended not to include SSM. And yet I stand by my reading of Windsor.

    I think I agree with you as a matter of predicting what the Supreme Court would do w/r/t polygamy, but then, the hypothetical world in which a state recognizes polygamous marriages is so far-fetched that I don't have confidence in my predictions regarding it.

  5. If you "stand by [your] reading of Windsor" but also "agree that it's beyond obvious that Congress intended" a different interpretation, then you're either saying that: 1) Congress' intent is irrelevant when interpreting the arguably ambiguous term "spouse"; or 2) Windsor's supposed statutory interpretation holding is wrong. Out of curiosity, which is it?

  6. Definitely #1--insofar as the obvious intent of Congress that is at issue is the unexpressed subjective intent to exclude same-sex couples. I think that can be justified on constitutional avoidance grounds: The unexpressed (but admittedly obvious) intent was very likely rooted in motives that are impermissible under equal protection principles. The Windsor majority (or at least Justice Kennedy) might say that federalism principles also render irrelevant the unexpressed intent to adopt a distinctive federal definition of marriage, but I'm not very enthusiastic about that view.

  7. Constitutional avoidance and federalism both require statutory ambiguity, which you seem to concede is lacking given the "obvious" context.

  8. Let me clarify a bit then. I have no doubt that IF the members of Congress who included "spouse" in some statute enacted in 1960, say, were asked whether they meant that to include same-sex spouses, they would have said something like "of course not," just as they would have said that of course they didn't intend it to cover polygamous spouses. But maybe I was a bit too quick to say that they therefore had unexpressed "intentions." It's probably more accurate to say that they had unexpressed ASSUMPTIONS. I'm not even sure that, under ordinary principles of statutory interpretation, benign unexpressed assumptions can render an otherwise ambiguous statutory term unambiguous. But even if they could, here the unexpressed assumptions are not benign. The "context" that permits us to say that the 1960 Congress meant to exclude SS spouses was the pervasive homophobia of the time. But that's what gives rise to the very constitutional issue that I think warrants avoiding by reading the language consistently with its current semantic content, albeit inconsistently with the unexpressed assumptions of the legislature that enacted it. Perhaps I'm just more of a believer in dynamic statutory interpretation than you are.

  9. I agree with you, Mike, I hope for the right reasons. Let me see if this helps.

    A quick internet search tells me (I hope, rightly) that in Georgia persons under the age of 16 are not permitted to get married. In Alabama, by contrast, persons over the age of 14 are permitted to get married (if they satisfy certain specified conditions, including parental consent). Now suppose a 17 year old citizen of Alabama marries a 15 year old English person of the opposite sex (following all the Alabama rules that apply to marriages between minors). Are these two people "spouses" for purposes of Federal Immigration law? I would assume so, despite the fact that they would not count as married under Georgia law. So isn't it already a *given* that "spouse" in Federal Immigration statutes means "spouse according to the marriage laws of the relevant State"?

    And suppose we polled every member of Congress who ever voted on an Immigration Statute, and that every single member assumed (intended!) that "spouse" not include 15 year olds. Would that make a difference? Surely not. The assumptions/intentions of Congresspersons should not matter in this sort of case. What matters is the meaning of the language of the statute. Given that marriage eligibility is fixed by State law (and fixed differently by each State), it follows that the very definition of a spouse is fixed by State law (consistently with the US and State Constitutions). So: do we even need Windsor to tell us this? If we do, what am I missing?

  10. To be clear, I agree with both Mike and Sam that erroneous assumptions and subjective intentions should be irrelevant to statutory interpretation. The proper question in my mind is how the statutory term would have been publicly understood at the time that the statute was enacted.

    And I just don't think that a reasonable member of the public at the time that most of the relevant federal statutes were enacted would have understood a federal definition of "spouse" to be tied to state law *even when* the state departed from a core attribute of the definition of "marriage" that had existed from time immemorial.

    It's one thing to say that the public would have understood that, absent a federal-law definition, the feds necessarily had to borrow state law with respect to the types of minor variations that have always existed among jurisdictions (age of consent, consanguinity, etc.).

    It's another thing entirely to say that the public would have understood that a state's redefinition of the one constant element of "marriage"--i.e., members of the opposite sex--was binding on the federal govt.

    Indeed, in some ways, polygamy has a *stronger* claim than same-sex marriage on this question of statutory interpretation. After all, countless jurisdictions have recognized that practice, both historically and currently. It's thus at least conceivable that the public would have understood such unions to be federal-law "marriages" if and when recognized by a state (though I remain skeptical).

    Finally, my argument doesn't depend on the homophobia of the public at the time. It turns instead on the fact that the public's understanding of a common term is inevitably shaped by historical practices.

  11. As I indicated at the conclusion of my last comment, I think my disagreement with Hash is ultimately methodological: I believe in what Bill Eskridge has called "dynamic statutory interpretation," which he contrasts with originalism in statutory interpretation. So, notwithstanding Sam's point (with which I largely agree), I also think I agree with Hash that the public circa 1960 (in my hypothetical example) would have expected state law to apply notwithstanding minor variations but would probably have expected core features of marriage to be governed by federal law, if a state deviated substantially from such core features, and I certainly agree that in 1960, SSM would have been regarded as a substantial deviation. Whether that expectation should be considered in the realm of "construction" rather than "interpretation" a nice question for (statutory) semantic originalists, but I'm not an originalist of any sort--in matters of statutory or constitutional interpretation. Thus, for me, the original understanding of a statutory provision is an important starting point, but it can be (and in this case I would say is) outweighed by other factors.

  12. "The proper question in my mind is how the statutory term would have been publicly understood at the time that the statute was enacted" (Hash).

    I'm sorry, but as a philosopher of language, I find this opaque, and really in the end just a way to smuggle in original-intent or original-expectations originalism under the guise of straightforward semantic (original meaning) originalism. The word spouse means (and at the time of enactment, meant) "someone to whom one is legally married". That's it, plain and simple. Suppose that at the time of enactment, most people thought that interracial couples could not be legally married, and so expected that the term "spouse" could not be applied to the members of interracial couples. It does not follow that the meaning of the term "spouse" now excludes members of interracial couples from the extension of the term (the extension is the set of entities to which the term applies). All that matters, as far the application of the term "spouse" is concerned, is whether A is legally married to B. Similarly for same-sex couples.

    The question is: what law fixes whether A is *legally* married to B? If federal statutes contain the word "spouse" without further elucidation of the meaning of "spouse", then they presuppose that the norms that fix the legal status of marriage are the ones that apply generally, i.e., the ones that apply when the legal status of a relationship is in dispute. And it is indisputable that the legal norms that determine whether a relationship counts as a marriage are fixed by State law (in a way that is consistent with the US Constitution). This is because it is State law that determines marriage *eligibility* generally (including age restrictions, parental consent requirements, rational capacity restrictions, and so on).

    To think otherwise (i.e., to think that the meaning of "spouse" is fixed by what the public at the time of enactment would have included within the possible extension of "spouse") is to think that original understanding is in fact fixed by original expectations or original intent.

    This is just the old point about the meaning of "cruel". It doesn't matter whether the general public at the time of the ratification of the 8th Amendment thought that public flogging wasn't cruel. What matters for purposes of application of the 8th amendment is whether public flogging satisfies the requirements fixed by the meaning of the word "cruel". Well, "cruel" means something like "causing a level of pain or degradation that is excessive (in relation to the offense)". At the time, maybe the general public did not believe that public flogging was excessively painful or degrading. Now we know better. (This is what moral progress looks like.)

    If we could all acquire a proper understanding of the nature of meaning, debates between dynamic constructionists and static originalists will become a thing of the past. Properly understood, semantic originalism is both static and dynamic. It is static because it requires us to apply legal documents in accord with the meaning of the relevant terms at the time of enactment. So meaning is preserved and doesn't change. At the same time, we need to recognize that people who understand a term may be wrong about what the extension of the term includes. This is because they are making a mistake of some sort, usually a mistake about important moral (and sometime non-moral) facts.

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