Because I am facing a hard deadline for revisions for a second edition of Restoring the Lost Constitution, I have not been able to formulate a reply to the criticisms of the amicus brief I joined — along with co-bloggers Ilya, Jonathan and Dale — in which we contended that DOMA exceeded the enumerated powers of Congress to enact, and violated the Equal Protection Clause because it served no proper federal interest. Happily, Duke law professor Ernie Young, the principal author of the brief, has formulated a reply. Here it is:
Last week, I and several other federalism scholars filed an amicus brief in United States v. Windsor, arguing that the federal Defense of Marriage Act (DOMA) is unconstitutional on federalism grounds. Ed Whelan at National Review Online finds that argument “badly confused,” and Nick Rosenkranz on this blog agrees that the brief is “unsound.” Neither really addresses most of the actual arguments in the brief, and I can’t repeat all those arguments here. This post simply responds to the primary point that both Rosenkranz and Whelan raise, which is that Congress “obviously has the power to define the meaning of the terms that it uses in [its] enactments.” (Whelan).
To say something is “obvious” is not itself an argument, and one may well ask from what clause of the Constitution this definitional power derives. It is certainly not true that federal statues cannot operate without a definition of marriage; they did so before DOMA, and DOMA itself defines marriage only partially (by excluding the same-sex kind). Generally, federal law takes state law as it finds it with respect to basic terms like “property” or “contract,” and this is particularly true in the traditional state-law realm of domestic relations.
Congress can, of course, define terms where this is “necessary and proper” for “carrying into execution” its enumerated powers, and much of our brief is devoted to showing that DOMA cannot satisfy the various tests that the Court has developed in its Necessary and Proper Clause jurisprudence. Neither Whelan nor Rosenkranz pauses to consider those arguments, but they boil down to three points: (1) Defining marriage, in order to defend the traditional institution, is itself the primary objective of DOMA (hence the name); the definition is not “incidental” to the accomplishment of some other enumerated end, like preventing immigration fraud or conserving revenue. (2) Because DOMA applies in shotgun fashion to over 1,100 federal statutes, it is “plainly adapted” to none of them; Congress never considered, say, whether excluding same-sex couples would make ERISA run more smoothly. And (3) DOMA is not proper because it lacks any principle to limit its intrusion into the states’ core power to define familial status.
It is simply not true that the operation of DOMA is confined to federal law and institutions. Nowadays, federal and state law are pervasively intertwined: state officials must administer many federal programs, and state and federal money are typically commingled within them. Having two definitions of marriage operative within a state causes confusion and raises administrative costs for state governments, creates uncertainty for the same-sex couples who find themselves married for some purposes and unmarried for others, and blurs the lines of political accountability. Consider, for example, a same-sex spouse denied Medicaid benefits by a state official administering the federal program.
To see the harm that an unlimited federal definitional power would permit, think back to an era when much of the country disapproved of no-fault divorce but a few states had begun to experiment with the concept. Suppose Congress passed a statute refusing to recognize—for purposes of federal law—any divorce where one party had not made a showing of fault. The couple would continue to be treated as married for purposes of federal income tax, healthcare programs, and veteran’s benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law. Worse, if Whelan and Rosenkranz are right, then Congress could cite the uniform administration of federal benefit programs as a pretext for promulgating a comprehensive federal family law code to be used for all federal purposes.
That is not our federal system. But suppose we are wrong, and that Congress is not generally obligated to employ state-law definitions of family status. Professor Rosenkranz’s (and Mr. Whelan’s) arguments do not even address the argument at the heart of our brief. The brief begins by arguing not simply that Congress lacks power to have a definition of marriage for purposes of its own statutes, but rather that Congress may not defend that definition against an equal protection challenge by asserting interests that fall outside its enumerated powers. In McCulloch, Chief Justice Marshall required not only that federal interests or “ends” be “legitimate,” but also that they be “within the scope of the Constitution.” In the immigration statutes, for instance, Congress defines marriage to exclude those unions entered into for the purposes of securing admission to the country, and it could defend that definition in terms of its interest in preventing immigration fraud—an interest that arises within the scope of Congress’s enumerated powers. What Congress may not do, however, is defend DOMA in terms of its interest in upholding a traditional conception of marriage, because Congress has no such interest. That interest, and its protection, is reserved to the States under their traditional police powers.
The debate about same-sex marriage is a fraught one, and the position DOMA takes may be congenial to many conservatives. But if we are serious about federalism, then we have to worry about who decides as well as what they decide. The genius of our system is to allow individual states to decide such difficult and divisive questions for themselves.
I may have more thoughts on this when I come up for air, but I am reminded of a slogan I repeatedly used when litigating the Raich case: ”federalism is not just for conservatives.” True, in Raich, we only got 3 votes from Chief Justice Rehnquist and from Justices O’Connor and Thomas. But had the “left” side of the Court embraced federalism as these three did, the case would have come out the other way. Perhaps the “progressive” justices will consider a federalism argument this time around, as I hope the more conservative justices decide to do.