Posts Tagged ‘federalism’

Parsing the Two DOMA Decisions

July 9th, 2010 2 comments

Big, good, and mostly expected news: Federal district court judge Joseph L. Tauro ruled tonight, in two separate cases (Commonwealth of Massachusetts v. HHS and Gill v. OPM), that section 3 of DOMA is unconstitutional. It’s late, and I’ve just slogged through all 75 pages of the decisions, but there are a couple of things that really jumped out at me.

First, I was reminded that these cases were brilliantly targeted at the weaker part of DOMA. Section 3 reads:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.

In other words, DOMA takes the step — the historically unprecedented step — of creating a federal definition of marriage, which it then superimposes on the states’ own definitions, effectively limiting their legal and social effect. The two cases were brought by (1) the Commonwealth of Massachusetts itself; and (2) several legally married, same-sex couples living in Massachusetts. Their constitutional claims were quite different, but (as I’m about to show), connected in one vital respect.

Let’s start with the couples. Their claim is simple, elegant, and really irrefutable: Granting federal benefits and other rights to some married couples, but not to others, is about as clear and indefensible an exercise in the denial of equal protection as can be imagined. In Massachusetts, both opposite- and same-sex couples can marry, but the straight ones get the goodies and the gay ones don’t.

The judge didn’t find any need to apply any kind of heightened scrutiny to the case, because he found that the law didn’t even have a rational basis. In a case that repeatedly cited Romer v. Evans, the court ran through the purported congressional justifications for DOMA in record time (in part because the Obama defense team had abandoned them): encouraging procreation and child-rearing in the optimal setting, and conserving scarce resources. The other justification, which amounted to little more than “we must avoid the apocalypse” (“traditional notions of morality”) was brushed aside as insufficient to ground legislation, per both Romer and Lawrence v. Texas.

The one new justification that the government raised was protection of the status quo. The court demolished — I mean, demolished — this argument, noting that the “status quo” had been for the feds to recognize states’ definitions of marriage, so that DOMA radically changed that status. And the practice of recognizing, and deferring to, local law on marriage, had been unaltered throughout our history, even in especially contentious cases such as interracial marriage. That practice, in turn, was grounded in the long-standing recognition that marriage and family law is one of the most fundamentally state law issues of all.

In short, the court stated what everyone knows: DOMA was a panicked, hastily crafted law designed to shut down the marriage equality movement before it took hold. Rationality and deference to (what Congress considered) bad state law had no place in the discussion. If equal protection under the law means anything, it’s that laws fencing out classes of people need at least a plausible justification. This provision of DOMA has none.


The equal protection argument used to strike down DOMA in the couples’ case turned out to be pivotal in the Commonwealth’s case, too. This was perhaps the most surprising aspect of the court’s decision.

As to section 3, DOMA doesn’t state a legal basis for Congressional action; so the government had to come up with one. It chose the spending clause, which allows Congress to tax and spend for the the  general welfare. (DOMA is (to an extent) about benefits.) The other side of that coin, the court stated, is the Tenth Amendment; it reminds us that Congress only has those powers enumerated in the Constitution. So while respect is due Congressional determinations of their power to legislate, courts get to decide whether an enumerated power can fairly said to have been exercised, or whether the principles of federalism reflected in the Tenth Amendment require striking down the law.

The spending clause discussion turned out to be simple, because the Supreme Court, in a 1987 case, established some clear limitations on Congressional ability to tax and spend. One was fatal here: “the legislation must not be barred by other constitutional provisions.” Since the court had ruled in the couples’ case that DOMA violated the guarantee of equal protection, that limitation was exceeded. (The court also noted that many of the federal laws affecting “spouses” had nothing at all to do with benefits, or spending.)

The court could have stopped there, but didn’t. What followed was a textbook exegesis of “the new federalism” that the Supreme Court has aggressively pursued (almost always by 5-4 majorities) over the past fifteen years. By way of background, the court sailed through the history of marriage regulation, beginning in the pre-Constitutional period. It’s always been a state matter, Judge Tauro noted, so much so that whenever anyone in Congress thought that family law matters might be worth regulating, a constitutional amendment (that would vault over any other constitutional issues) rather than legislation was considered. Until DOMA.

The Supreme Court, too, has assumed that domestic matters were beyond federal power to regulate; in a recent case criticizing an expansive view of the commerce clause, the Court feared that such an approach could lead to federal regulation of “family law and other areas of traditional state regulation.

The government can defend that it’s not making Massachusetts do anything, and maybe that argument will prevail — the Court consistently distinguishes receipt of benefits (like the Medicaid ones that Massachusetts can’t get for its same-sex spouses as it can for its opposite-sex marrieds) from directly forcing an action. But the federal tentacles reach so pervasively throughout the state’s own administration that the Supremes might find a line from benefits to commandeering has been crossed. Particularly unsympathetic is the federal effort to stop VA-funded cemeteries in the state from burying the spouses of service members next to their deceased partners.

And even if the Supreme Court — where this case is surely headed — thinks it can make the benefits/commandeering distinction as a matter of logic, to allow this level of intrusion into state’s affairs would be hard for this Court to do with a, er, straight face. (That’s not to say it would surprise me, especially from this group of activist, expedient-driven justices.) And it still doesn’t get around the equal protection problem, which seems to me unshakeable.

Good night!

“‘Till Death (or a Change in the Law) Do Us Part”

September 29th, 2009 No comments

Gay couples, consider this before marrying: You might not be able to get out of it, if your marriage doesn’t result in the eternal bliss (or at least the workable series of compromises) you were hoping for.

Tara Ranzy and Larissa Chism recently made news when an Indiana court quite properly refused to grant them a divorce. The result was proper, from a legal, procedural point of view because a court doesn’t have jurisdiction to grant a divorce to a couple whose marriage, under state law, doesn’t exist. Indiana is one of many states with legislation restricting marriage to the union of a man and a woman, and barring recognition of same-sex marriages performed anywhere else.

An appeal is likely, but is unlikely to be successful. I don’t see how a state court could get around the jurisdictional problem without declaring the state law unconstitutional. This result is possible; Indiana has a statute, not a constitutional amendment against same-sex marriages, so the constitution would trump. But I don’t think this is likely; if the Indiana Supreme Court were progressive (like the Iowa Supreme Court, for example), advocacy group litigation challenging the law would likely have been brought by now.

The couple was married in Canada, so why not divorce there? That wouldn’t be a bad idea, except that — unlike marriage — divorce requires that one member of the couple be resident there for at least a year. Now what?

There are some options, but they’re not great. Courts in most states will divide assets between couples — gay or straight — in long-term relationships, even without the legal sanction of marriage. There are attorneys who specialize in just such cases. Results are unpredictable, and generally less equitable than what’s available under divorce law.

Or the couple could just “pretend” they’re no longer married. But they are married, absent a recognized divorce, at least in those states that recognize their union. So what happens when either woman finds someone else to marry? Is she a bigamist if she does marry? In some states? Were I advising her, I’d say: No future marriage until you find a court willing to divorce you — property division isn’t enough.

I’m not even getting into child custody or visitation issues, which will also vary as now-disintegrated couples cross state lines. (This couple had no children, but the problem is real.)

It does seem as though we’re doomed to this situation for some time to come. Even if Congress repeals DOMA, that action won’t force any state to recognize a same-sex marriage from another. The patchwork will continue until one of two things happen: (1) all states recognize marriage equality (this will take forever); or (2) the U.S. Supreme Court declares that excluding same-sex couples from marriage violates the Constitution (this won’t happen any time soon, probably, but will likely come before all of the states will fall into line).

This is what federalism has wrought. Jonathan Rauch, among others, likes the “50 state laboratory” idea (here’s a link to his excellent book arguing that point), but he’s not a lawyer considering the legal complications. And I’d guess he’s not been unlucky enough to find himself stuck in a situation where only death can do him (and his spouse) part.

Family Law has always been for the states to decide, but  that’s precisely why “full faith and credit” is so important. To simplify, that doctrine requires that states respect the judgments and acts of other states. It’s long been used to get around unfriendly state laws: Full faith and credit explains why, for example, people went to Nevada for no-fault divorces before other states allowed such dissolutions. Laws, like state mini-DOMAs, that override full faith and credit (under a public policy exception to the general requirement), lead to the kind of messes that have bogged down Ranzy and Chism.

Just one more reason why gay couples might choose not to marry — but a reason that won’t be captured by surveys. So when commentators say that gays won’t marry even if permitted to, keep in mind that, unlike opposite-sex marriages, our unions are fluidly defined, unsettled, and legally chancy. That’s got to scare many thoughtful people away. Not me, though.

Dale Carpenter’s Take on the Massachusetts DOMA Suit (and a Response)

July 11th, 2009 No comments

Dale Carpenter doesn’t find the same federalism problems with DOMA that I did. He starts by agreeing with much of what I said, especially about the “neutrality” canard:

“[T]he Massachusetts lawsuit convincingly sketches several ways that Section 3 enlarges federal authority and undermines state authority in an area of traditional state control…. Section 3 is a departure from the tradition of federal reliance on the states’ definition of marriage, as Massachuestts says. There is a genuine concern about state authority here. Overall, these policy arguments are a strong rebuttal to the Obama DOJ’s view that federal ‘neutrality’ justifies Section 3 because otherwise non-SSM states will be forced to subsidize SSM in places like Massachusetts.”

But then he argues that the problems don’t rise to the level of a constitutional concern:

“I am less persuaded that these concerns rise to constitutional dimensions, at least under existing precedents. For all the harm it does, DOMA does not forbid a state to define marriage as it sees fit. DOMA does not forbid a state to provide equal marital benefits and privileges to same-sex couples under its own laws and programs. At most, it makes a state’s recognition of same-sex marriages more cumbersome and costly than it would be if the federal government continued to defer to the state definition. This could, at least in theory, though probably not in fact, discourage a state from trying same-sex marriage.

“All of Massachusetts’ examples of federal ‘imposition’ of unprecedented costs and regulation are in fact uses of Congress’s Spending power. As the Court understands that power, Congress can spend in areas it could not directly regulate. Congress is free to dangle monetary carrots or brandish financial sticks within very broad limits, even in areas historically left to state power. The connection between a condition on the funds and the spending program itself need only be ‘rational.’ In the Wonderland of Constitution-speak, a law can be crazy without being irrational.”


The post elicited scores of comments in response. This was the one I most agreed with:

“I think you’re missing the forest for the trees, here.

“DOMA is an unprecedented intrusion into the ability of states to define who and who is not married. Yes, the individual instances of that are minor and all within the federal powers. But that’s not the point.

“The point is this: the federal government has never before been able to pick and choose amongst states’ definitions of a marital or domestic status. DOMA is the first time that the federal government has ever said that it would not recognize a marital status created by a state — it’s simply unprecedented.”

“If we truly believe in a sphere of powers left to the states, and in the states’ rights decisions of Morrison and Lopez, then can there by anything more central to a state’s power than its ability to regulate the domestic relations of its inhabitants? If not, then what, really, is reserved to a state if the government can so recklessly throw asunder what state law has created..?

“DOMA is not just federal policy for federal policy’s sake. It undermines what the states are doing and pretends as if those relationships are not there. That clearly violates the states’ sole power to order domestic relations.”


Maybe this is a case of logic confronting precedent, where the prior cases are, as the commenter suggests, less than fully persuasive.