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Issues With Balkin’s Analysis of DOMA Decisions

Having read in the NY Times a couple of confident-sounding quotes from Yale law prof Jack Balkin — critical of the two DOMA decisions handed down yesterday, and predicting their certain reversal on appeal — I tracked down his blog post for more detail. Doing so only ripened my sense that his analysis is questionable.

I don’t have much to say about his Tenth Amendment point, except to note that it does seem that there’s something different about passing federal statutes and regulations that distribute benefits and impose obligations based on family structure (some of which do assay a definition of family), on the one hand, and DOMA, which for the first time in U.S. history defines marriage for federal purposes, on the other. See my previous post for an elaboration of the point.

But that’s the least of it. The elusive and shifting limitations on Congressional power imposed by (judicial interpretation of) the Tenth Amendment are one side of the coin; identifying the positive source of the power to legislate is the other. And Balkin breezes past the spending clause question, which is the legislative predicate on which the Obama Administration stood. The problem with that is the Supreme Court’s own holding, in South Dakota v. Dole, that purported exercises of the spending power aren’t valid where they violate other constitutional provisions — and here the exercise of the power does just that, according to Judge Tauro, by running afoul of the equal protection clause (for reasons he spells out in his opinion in the companion Gill case).

And, speaking of equal protection, here’s Balkin’s take on what the court did in Gill:

Moreover, while insisting that marriage is a distinctly state prerogative, Judge Tauro argues that the federal constitution makes it irrational for the federal government to discriminate between same and opposite sex couples. But if so then it follows that it would also be irrational for a stategovernment to discriminate, because the test under the Fifth Amendment equal protection component and the Fourteenth Amendment’s Equal Protection Clause (which applies to the states) is the same. Thus Judge Tauro is saying that marriage is none of the federal government’s business, except, of course, when a federal court thinks otherwise. He is, in essence, laying the groundwork for an equal protection challenge to state marriage laws in virtually every state. This is not a result that is particularly respectful of state prerogatives!

This is clever, but not persuasive. That the tests applied to federal and state laws would be the same doesn’t mean the facts would be. Most of the discussion relating to the federal government’s justification for DOMA wouldn’t apply at all to the states, because it had to do with the “rational basis” for maintaining the opposite-sex marriage status quo; as Tauro pointed out, the “status quo” is for the feds to respect and follow the state definition of marriage. There’s just no analogous issue in state court. (It is true, though, that Judge Tauro also exploded the proffered justifications for DOMA at the time of its enactment; to the extent this exercise is part of the holding (and not just dicta), it would, if followed, constitute an equally powerful argument against similar state justifications for the exclusion of same-sex couples.)

And the final point about respect for state prerogatives also misses something vital. There’s a huge difference between the historical and constitutional facts that limit (maybe!) the federal government’s ability to define marriage, on the one hand, and a constitutional violation of equal protection, on the other.

Indeed, the difference seems to lie at the very heart of federalism.

Update: Andrew Koppelman, in a short, effective post, also took on Balkin with respect to the equal protection argument. Balkin then backed off (some), in a long post that looked at the possible justifications for DOMA’s section 3  — and that only ran aground when he implied that DOMA might not have been enacted because of homophobia but because of politics. In our representative democracy, to the extent that politicians enact their constituents’ homophobic impulses, it shouldn’t matter whether, in their heart of heart (which have yet to be discovered in many of them), they share those beliefs. Who cares? Oh, and by the way, they do share them, or at least did when DOMA was enacted: Read some of the Congressional testimony, for cryin’ out loud.

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