Flipping Federalism in Windsor -- Guest Post by Prof. Clifford Rosky

By Clifford Rosky

Just last week, I filed an amicus brief in Kitchen v. Herbert, the challenge to Utah’s constitutional amendment that bans same-sex couples from marrying.  The brief was filed on behalf of Utah’s largest LGBT organizations, Equality Utah and the Utah Pride Center, and it was prepared with the generous help of attorneys at Zimmerman Jones Booher.  In writing this brief, we tried to do something a bit different with United States v. Windsor: Rather than trying to avoid or resist the Court’s discussions of federalism, we showed that the Court’s analysis of the State’s authority to define marriage actually supports the invalidation of state laws under Windsor.

In Windsor, Justice Scalia and Chief Justice Roberts kicked off a national debate about how the Court’s invalidation of the federal Defense of Marriage Act would apply to state laws.  While Scalia predicted that it was “inevitable[] to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Roberts argued “it is undeniable that [the majority’s] judgment is based on federalism.”  “[I]n future cases about the constitutionality of state marriage definitions,” Roberts warned, “the State’s power in defining the marital relation . . . will come into play on the other side of the board.”

Since Windsor was decided, the litigation strategy in the states has proceeded largely as Scalia and Roberts predicted.  In addition to making the familiar due process and equal protection claims developed in earlier cases, plaintiffs have now added a long list of quotations from Windsor.  Following the blueprint laid out in Justice Scalia’s dissent, they have plugged in “this state law” wherever the majority opinion mentioned “DOMA.”

In reply, the States who have chosen to defend these laws have quoted extensively from the Windsor majority’s frequent bows to the State’s primary authority to regulate domestic relations: “domestic relations . . . has long been regarded as a virtually exclusive province of the States,” “the definition of marriage is the foundation of the State’s broader authority to regulate domestic relations,” “there is no federal law of domestic relations,” and so on.

In an attempt to have the final word on this matter, plaintiffs have responded by quoting the Windsor Court’s repeated warnings that although the State’s authority to define marriage is broader, it always remains “subject to constitutional guarantees.”  In one instance, the Court’s warning include an intriguing cite: “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, Loving v. Virginia, 388 U.S. 1 (1967).”

To date, this strategy has yielded a remarkable string of victories for plaintiffs: Since Windsor, all six federal judges to consider the question have ruled that states may no longer refuse to issue marriage licenses to same-sex couples, or refuse to recognize same-sex marriages performed in other states.  In the next few months, we will begin to see how the these rulings will hold up on appeal.

After reading Windsor more times than I’d care to admit, I noticed an interesting idea that I hadn’t seen mentioned by plaintiffs yet, which I developed in our amicus brief: In describing the relationship between federalism and marriage, the Windsor Court seems to be offering an explanation of why States have the primary authority to define marriage.  The explanation begins on page 2692, where the Court describes the significance of New York’s decision to recognize and allow same-sex marriages.  As the Court says, the State’s decision was “without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.”

In the next sentence, the Court offers the first clue about why marriage is primarily reserved to the States, rather than the Federal Government: “The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.”  The thesis of this sentence seems fairly straightforward:  In the federal system, we give States more authority to regulate our “daily contact” because States are local—smaller than the Nation, less populated, more socially interactive.  By reserving this kind of authority to the States, rather than the Feds, we enhance our ability to govern how we interact with each other in our daily lives.  Because marriage is quintessentially personal, it is quintessentially local.

In the next paragraph, the Court goes on to explain how this general theory of federalism applies specifically to marriage.  Within a few sentences, it becomes clear that the Court is not about to countenance a popular vote on the validity of same-sex marriages.  First, the Court writes that the State’s authority to define marriage is derived from the recognition that marriage is about more than just benefits: “The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.”  What more, you ask?  Above all, the Court signals that marriage is a personal union between two adults: “Private, consensual sexual intimacy between two adult persons of the same-sex . . . can form ‘but one element in a personal bond that is more enduring.’’  “This status is a far-reaching legal acknowledgment of the intimate relationship between two people.”

On the following page, the Court adds one final thought on the link between federalism and marriage, which seems especially telling: “The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people.”

I think that this sentence—perhaps more than any other—strikes a decisive blow against state laws that ban same-sex couples from marrying.   If anything, the Court’s theory of federalism and marriage indicates that excluding same-sex couples from marriage under state law, rather than federal law, has an even more profound impact upon them, by imposing inequality even more deeply into their daily lives.  To take the most obvious example: Unlike DOMA, state laws actually prohibit same-sex couples from marrying in the states where they live—and in some cases, from entering into any domestic union at all.