What is the Theory Behind the Latest Holder Memo on SSM--And Does It Go Far Enough?

By Mike Dorf

In remarks at a Human Rights Campaign event that were published on the DOJ Website yesterday, Attorney General Eric Holder announced additional measures that the executive branch of the federal government will be taking to recognize same-sex marriages. A memo provided further details. The new steps include extending the spousal testimony privilege to same-sex spouses in cases in federal court in which the U.S. is a party, providing and/or advocating for equal treatment of same-sex spouses in bankruptcy cases, and treating same-sex spouses equally within the federal prison system. These are important steps that follow up on the executive's commitment--post-United States v. Windsor--to ensure that the federal executive does not discriminate against same-sex couples.

Here I want to consider two related questions: First, what is the theory behind the move? And second, do the the steps go far enough?

I can readily imagine two plausible grounds for the Justice Dep't approach. First, the DOJ may take the position that, in light of Windsor, terms like "spouse" and "married" throughout the U.S. Code and regulations are best read as encompassing same-sex couples. Such a view would have to rest on what Bill Eskridge has called "dynamic" statutory interpretation rather than a traditional "faithful agent" or "intentionalist" view. In other words, it is quite unlikely that the Congresses that voted in favor of most federal statutes or the agencies that promulgated most federal regs that use terms like "spouse" or "married" had in mind same-sex couples. Nonetheless, just as non-originalist constitutional interpretation allows for the possibility that our understanding of constitutional language evolves over time, so dynamic statutory interpretation allows for the possibility that the same is true of statutory language.

Eskridge's key work predated the semantic turn in originalist constitutional scholarship, but just as some self-styled constitutional "new" originalists allow for considerable change by distinguishing semantic meaning (which they say is fixed) from construction (which can change), so we can understand dynamic statutory interpretation in the same way. In such a view, one would say that the Congresses or agencies that wrote the relevant statutes or regs may have expected terms like "spouse" and "married" only to apply to opposite-sex couples but that their concrete expectations were never part of the meaning of the words, and so we are now free to construe them more broadly.

For reasons that are not worth discussing here, I find the semantic turn in constitutional interpretation largely unhelpful and for similar reasons, I find it unhelpful with respect to statutory interpretation. In any event, I put those points aside to note that whatever its theory of statutory interpretation, the Obama/Holder Justice Dep't is pretty clearly interpreting federal statutes and regs (and other enactments, like common law privileges) in light of what it regards as a constitutional imperative.

Put differently, one can readily understand the Administration's position as a kind of constitutional avoidance. In light of Windsor, the Administration thinks that a serious constitutional question would be raised by construing any piece of federal law as privileging opposite-sex marriage; thus, insofar as the executive has authority within its own domain, it avoids that question by construing the language broadly.

That brings me to the second, and arguably more likely, theory to explain what the Holder Justice Dep't is doing: Perhaps  the Justice Dep't is invoking an older version of constitutional avoidance that aims to avoid actual unconstitutionality, not merely to avoid facing difficult constitutional questions. Since President Obama's having "come out" as favoring legal SSM, his Administration has increasingly moved towards the position that laws forbidding SSM are flatly unconstitutional as violations of equal protection. Under this quite straightforward view, the Administration is treating same-sex marriages as equal in all respects to opposite-sex marriages because to do otherwise would be to deny same-sex couples the equal protection of the law (in violation of the equal protection component of the Fifth Amendment Due Process Clause).

If this is the Administration's view, then the policy does not go far enough. Footnote 1 of yesterday's memo states that the "policy applies only to individuals in valid marriages," not to domestic partnerships or civil unions. So a same-sex couple in a state, like Oregon, that recognizes such unions but does not permit marriage (although Oregon does recognize SSM from out of state), or worse, a state like Texas, that provides no recognition at all to same-sex unions, are out of luck.

Or are they? The Obama Administration has determined that a same-sex couple who celebrate their marriage in a state that recognizes SSM will be treated as married for federal purposes, even if they reside in a state that does not itself recognize SSM. Thus, all that a Texas SSM couple need to do to obtain the benefits of the Holder policy is travel to New Mexico and get married.

But even that requirement strikes me as unjustified if the Administration really believes that it denies equal protection to deny recognition to SSM. Even though Texas borders New Mexico, Texas is big, so that's a pretty big burden for a lot of Texans. Moreover, in other states the travel burden is even greater. By my calculation, it's a more than thousand mile drive from Miami (where neither same-sex marriages nor civil unions are recognized by Florida law) to the nearest town of any size that issues marriage licenses to same-sex couples (Cairo, Illinois). If it's a denial of equal protection to treat same-sex marriages as less than opposite-sex marriages, then it's also a denial of equal protection to require couples wishing to enter the former to bear a very substantial travel burden that does not apply to the latter.

To be sure, it's Texas, Florida, and other states that don't recognize SSM that are imposing the travel burden, not the federal government. But it's a familiar principle of equal protection that incorporation of a discriminatory criterion is itself discriminatory. (See Palmore v. Sidoti.) So if the Holder memo really aims to give equal protection to same-sex couples, it ought to permit couples residing in a no-SSM state to designate themselves as married for federal purposes without incurring the inconvenience, expense, and indignity of having to travel to a distant state that recognizes SSM.

I can think of two reasons why the Administration hasn't taken this position. First, it would be administratively complicated. There is no general federal law of domestic relations. Allowing a couple to designate themselves as married for federal purposes would require the development of such a body of law, potentially in violation of the Tenth Amendment, and at least in ways that would likely implicate actors beyond the control of the federal executive (such as courts). Whether this factor should be determinative is not clear. The Administration is already in something like this position because of its (laudable) decision to treat marriages as valid if valid where celebrated, even if not valid where the couple reside. That approach is contrary to the general choice-of-law approach, and it too leads to couples being married for federal purposes but not state purposes.

The other possibility is that the Administration takes a narrower view of equal protection, one closer to the reasoning of Justice Kennedy's Windsor opinion. In this view, it denies equal protection for the federal government to refuse to recognize same-sex marriages that are recognized under state law, but it's not yet clear that it denies equal protection to deny recognition to marriages that no state recognizes. That line seems to me an unstable compromise, in just the way that civil unions were an unstable compromise. I doubt it will endure past June 2015, when the SCOTUS will likely decide the Utah SSM case.