Federalism Concerns Dominate the Attack on “Skim Milk” Marriage

At the Supreme Court today, the Defense of Marriage Act took a beating from Justices concerned about federalism.  By my count, five Justices expressed deep constitutional concerns with DOMA, and four of these (Kennedy, Ginsburg, Sotomayor, and Breyer) expressly cited its intrusion into the traditional state domain of marriage law as a reason.  Another, Justice Kagan, used the novelty of DOMA’s intrusion into state authority as a reason to be especially suspicious of its validity under the Equal Protection Clause.  In other words, federalism and equal protection worked in tandem, with one bolstering the other.

The strongest federalism concerns came directly from Justice Kennedy, the perceived swing voter in the marriage cases, who repeatedly argued that DOMA amounted to federal regulation of marriage.  But even a couple of the more liberal Justices seemed to prefer a federalism ruling since it would have no immediate impact on state marriage laws.  The argument offered the narrowest way out of a difficult constitutional thicket, while ensuring DOMA’s demise.

The other four Justices, echoing some of the arguments we’ve heard from VC co-blogger Nick and from Ed Whelan at National Review Online, were very skeptical.  They seemed to accept the argument that in adopting DOMA, the federal government was simply defining the limits of federal programs, as it might define what constitutes “skim milk” for purposes of refusing to include it in a subsidy for whole milk.  That argument has some superficial appeal, but is far too casual in its asssesment of the distinctive impact of DOMA on state authority.  It trivializes an especially sensitive and historic area of state concern. For a more detailed argument on these points, see the amicus brief filed by several of us here.

It’s hard to say based on oral argument alone how a case will come out, much less what the rationale will be.  It’s possible, for example, that the Court could sidestep the merits and dismiss the Windsor appeal on jurisdictional grounds (although it seemed to me there were likely five votes to reach the merits).  But if today’s oral argument is any guide, the margin for ending what Justice Ginsburg memorably called “skim milk” marriage might just be the argument that enshrining traditional marriage in federal law violates the nation’s traditional commitment to limited federal power over marriage.