A Federalism-Based Equal Protection Argument Against DOMA

Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional.  Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and properly implied) powers.  If DOMA Section 3 does not serve any legitimate interest — indeed, if a sweeping federal determination of marital status is constitutionally prohibited — then Section 3 cannot be justified under any level of scrutiny that might apply under equal-protection principles.  As we express it in the summary of the argument:

Before this Court addresses whether DOMA denies equal protection of the laws, there is a prior question of federal power. This question is prior not only because DOMA cannot stand if it falls outside Congress’s authority but also because DOMA can only survive an equal-protection challenge if it serves federal interests within Congress’s legislative jurisdiction. As Chief Justice Marshall recognized in McCulloch v. Maryland, only ends “within the scope of the constitution” are “legitimate.” 17 U.S. (4 Wheat.) 316, 421 (1819). That is true regardless of the level of scrutiny that this Court applies to Ms. Windsor’s equal-protection claim.

DOMA falls outside Congress’s powers. Marriage is not commercial activity, and DOMA is not limited to federal-benefit programs that might rest on the Spending Clause. Any action by Congress that falls outside its specifically enumerated powers must be justified under the Necessary and Proper Clause, and DOMA cannot pass that test. DOMA’s definition of marriage is not “incidental” to an enumerated power, see Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2591 (2012), because—as the Bipartisan Legal Advisory Group has said—its purpose is to make social policy regarding domestic relations rather than “carry into execution” some federal enumerated power. DOMA’s definition is also not “plainly adapted” to an enumerated end, see McCulloch, 17 U.S. (4 Wheat.) at 421, because it applies to more than 1100 federal statutes at once. Congress has never even considered how defining marriage to exclude same-sex couples will affect most of these statutory regimes, and BLAG does not defend DOMA in those terms. Finally, DOMA’s definition is not “proper,” see Printz v. United States, 521 U.S. 898, 923-24 (1997), because it violates the States’ equal sovereignty and lacks a limiting principle to cabin its usurpation of state control over domestic relations.

“[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.” Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). DOMA represents an unprecedented intrusion into this domain. That is true even though Congress has enacted statutes, such as for cross-border enforcement of child-custody and support orders, within the sphere of domestic relations. Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.

Congress’s establishment of a competing federal definition of family undermines the States’ sovereign authority to define, regulate, and support family relationships. Federal law is massively intertwined with state law, and state officials implement many federal programs, like Medicaid, in parallel with their own legal regimes. DOMA thus wreaks confusion and imposes substantial administrative costs that undermine States’ attempts to define marriage for themselves. These contradictory legal regimes impose costs on individuals as well, who cannot rely on a single body of law to settle their domestic status or hold a single set of officials politically accountable.

DOMA’s appropriation of the power to define marriage cannot be justified as simply defining a term relevant to administering federal programs. The statute is not called the “Defense of Marriage Act” for nothing: Congress did not act, say, to make ERISA function more smoothly, but rather because it wished to establish and promote a national definition of marriage to compete with States’ changing definitions. BLAG’s argument in defense of DOMA could not be clearer on this point. It asserts that “the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes.” Br. 19.

BLAG is wrong. The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do. That is the difference between a government with a general police power and a government of limited and enumerated powers. And it is sufficient to decide this case.

While sounding in federalism principles, the argument is ultimately aimed at the equal protection analysis the Court is set to review.  It is an argument that there is, in fact, a federalism component in the equal protection principles made applicable to the federal government through the Fifth Amendment’s Due Process Clause.  It is thus different from the 10th Amendment decision by Judge Tauro of the Massachusetts District Court in a similar case challenging DOMA.  Our argument doesn’t rely on the 10th Amendment, but on limits on federal power that would exist even without that amendment.  We take no position in the brief on whether there is also a 10th Amendment problem with DOMA.

The argument is largely the brainchild of Ernie Young, who led the drafting effort, along with the superb attorneys Roy Englert, Carina Cuellar, and Erin Blondel at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP.  You can read the entire brief here.