There Is No Federalism Objection To Section Three of the Defense of Marriage Act

There has been a lot of commentary about the federalism argument against the Defense of Marriage Act (DOMA). Several of my co-conspirators signed on to the “federalism brief” in the DOMA case. I expressed serious doubts about the argument a few weeks ago (as did Sasha, and Ed Whelan over at National Review Online), and Jonathan Adler and Ernie Young responded. In deference to my co-conspirators, I thought I would leave the matter there. But now that George Will and Michael McConnell have taken to the editorial pages in support of the federalism argument (as Dale and Jonathan note), I feel obliged to explain in greater detail why I think this argument is unsound.

Once again, Section 3 of DOMA provides: “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 a wife.” The key point here is that this provision defines the word “marriage” only for purposes of federal law.

Indeed, Ernie Young, primary author of the federalism brief, concedes that “Congress can, of course, define terms where this is ‘necessary and proper’ for ‘carrying into execution’ its enumerated powers.” But he insists that DOMA’s definition of “marriage” is not necessary and proper. I confess that I do not understand this argument.

Imagine Congress has enacted only two statutes total. The first is an exercise of the Commerce Clause power. It provides: “It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft.” 33 U.S.C. 409. The second is an exercise of the power to “make rules for the government and regulation of the land and naval forces.” It provides: “The Secretary of the Navy shall designate boards of naval officers to examine naval vessels.” 10 U.S.C. 7304(a).

I don’t think anyone doubts that Congress could add a definition of the word “vessel” to statute one, or statute two, or both. Surely, therefore, Congress can instead enact a general definitional provision, defining the word “vessel” once for purposes of both statutes. In fact, Congress has done exactly that, at 1 U.S.C. 3 (just a few sections before DOMA), and the Court has never suggested that it is unconstitutional. I imagine that all the signatories of the “federalism brief” are with me so far. They have not, thus far, expressly argued that the entire Dictionary Act is unconstitutional.

So what is it that makes DOMA different? The fact that it applies to 1100 statutes, rather than just two? The Dictionary Act, which defines “vessel” at 1 U.S.C. 3, also applies to many, many federal statutes. The fact that the many federal statutes that use the word “marriage” were originally enacted under assorted, different heads of congressional power? That’s just as true of “vessel.” (Compare 33 U.S.C. 409 with 10 U.S.C. 7304(a), two paragraphs above.) The fact that states have also chosen to use the word “marriage” in many of their statutes? “Vessel” appears in lots of state statutes too. The fact that some states have chosen to define “marriage” differently, for purposes of state law, than Congress has for purposes of federal law? Again: this is also true of “vessel.” (And even if it weren’t true of “vessel” today, could it possibly matter if California tomorrow defined “vessel,” for purposes of state law, to include sports cars? Would California thus somehow render the federal Dictionary Act unconstitutional?) The fact that state changes in the traditional definition of “marriage” are recent, and post-date DOMA? Surely, if anything, that fact cuts the other way. Cf. U.S. v. Raich, 549 U.S. at 29 n.38 (“California’s decision (made 34 years after the Controlled Substances Act] was enacted) to [legalize medical marijuana] cannot retroactively divest Congress of its authority under the Commerce Clause.”); The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1279, 1283-84 (2010).

The fact that marriage is special, and of particular state concern? Well, ok. But that is only to say that the word “marriage,” as used in state law, connotes a special relationship. It hardly follows that Congress is either required or forbidden to use the same word, or to have it denote the same idea. Congress could forbid selling a kilo of “marriage” in interstate commerce and then define “marriage,” for purposes of this statute, to mean cocaine; this would be an odd use of language, but it would hardly exceed Congress’s Commerce Clause power or violate the Tenth Amendment.

Indeed, to this point, consider another provision of the Dictionary Act, 1 U.S.C. 2, defining the word “county” for purposes of federal law. One might have thought that defining its own subdivisions, like counties, was perhaps the single most fundamental reserved power of a state – more fundamental even than domestic relations. Cf. Coyle v. Smith (state has power to choose its capital city). Yet no one has ever suggested that Congress cannot define the word “county” for purposes of federal law.

In short, no legislature has a monopoly on any particular word in the English language, and no legislature may impose its definition on any other. If DOMA is unconstitutional, it is because this particular federal definition of “marriage” offends some substantive constitutional provision. But that has nothing to do with federalism.

One final note: Jonathan Adler reminds us that “federalism should be respected even when it cuts against conservative preferences,” and Randy makes the same point. About this, I emphatically agree. But the implication, it seems, is that Sasha and Ed Whelan and I are, perhaps, fair-weather federalists, abandoning our principles because they do not suit our preferred policy result in the DOMA case. For the record, I yield to no one in my steadfast defense of federalism. Moreover, I have no particular fondness for DOMA, and I have taken no position on the ultimate merits of the case. I have critiqued “the federalism brief” only because, with all due respect, I’m afraid that it is unsound.

For a more thorough and scholarly treatment of this topic, see Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2102-25 (2002).