The Chief Justice’s Excellent Hypothetical: Under Our System of Federalism, Can You Be Both Married and Unmarried at the Same Time?

In oral argument yesterday, the Chief Justice asked Solicitor General Verrilli what Ed Whelan on Bench Memos thought was a killer question:

CHIEF JUSTICE ROBERTS: Suppose your — you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say “marriage” in Federal law, we mean committed same-sex couples as well [i.e., whether or not married under state law], and that could apply across the board.

Or do you think that they couldn’t do that?

GENERAL VERRILLI: We think that wouldn’t raise an equal protection problem like this statute does, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well, no, my point is: It wouldn’t — you don’t think it would raise a federalism problem either, do you?

GENERAL VERRILLI: I don’t think it would raise a federalism problem.

Writes Ed:  “But it can’t be the case that a federal definition of marriage for purposes of federalism law presents a federalism problem under DOMA but not under the Chief’s hypothetical.”

I think Ed is right about this, but it is the Solicitor General who is wrong.  Congress no more has the power to expand the definition of marriage than it has to contract it.  This is because defining marriage — like defining property — is a traditional function of the states.  Consider how Paul Clement opened his argument:

I would submit the basic principles of federalism suggest that as long as the Federal Government defines those terms solely for purposes of Federal law, that the Federal Government has the choice to adopt a constitutionally permissible definition or to borrow the terms of the statute.

This is wrong.  If Paul is right, then one can be married under federal law and unmarried under state law.  Imagine how this would work — and then imagine the reaction of advocates of “traditional marriage.”  A Democratic Congress passes the “Marriage Equity Act” that establishes “for purposes of federal law” that “marriage” can be either same sex or opposite sex.  This means that, as U.S. citizens, same sex couples would be married in every state of the union under federal law, including in states that did not recognize same-sex marriage. Would this not interfere with the power of states to preserve traditional marriage? If the answer is not obvious, then imagine the federal government issues “federal marriage certificates” to same-sex couples to be used when dealing with, say, the IRS or the Social Security Administration.  If it has the power “to adopt a constitutionally permissible definition,” then for administrative convenience it certainly ought to be able to issue federal marriage certificates along with federal passports.  Now, do you suppose that defenders of traditional marriage might have a “federalism problem” with this law?  And do you think they would be mollified by the response that, “hey, these folks are still unmarried under state law, so what’s your beef”?

In contrast with the Solicitor General, after an initial reluctance to commit to a position, Ms. Windsor’s attorney, Roberta Kaplan, got the answer right:

MS. KAPLAN: I’m not sure that the Federal Government — this answers your question, Justice Scalia — I’m not sure the Federal Government can create a new Federal marriage that would be some kind of marriage that States don’t permit.

Why not?  There is a one-word answer: Federalism.   But then Justice Alito immediately interjected this:

JUSTICE ALITO: Well, let me get to the question I asked Mr. Clement. It just gets rid of the word “marriage,” takes it out of the U.S. Code completely. Substitutes something else, and defines it as same-sex — to include same-sex couples. Surely it could do that.
MS. KAPLAN: Yes. That would not be based on the State’s -­
JUSTICE ALITO: So it’s just the word “marriage”? And it’s just the fact that they use this term “marriage”?

Isn’t that what we have been told that this whole dispute has been about?  How the term “marriage” is used?  Proposition 8, for example, did not seek to undo California’s “civil union” law, which carries with it most, if not all, the privileges of “marriage” without calling it such. This is not to exalt form over substance.  “Marriage” is a term of approval; the denial of the label “marriage” to same-sex couples seems to be an act of disapproval.  (Whether that legislative refusal to extend approval to same-sex couples violates the Equal Protection Clause is a separate question.)

But here is the thing:  If you accept Chief Justice Roberts’ hypothetical statute as constitutional, then you could be “married” under federal law and “unmarried” under state law, and that is crazy.  It would be like saying you “own” your home under the property law of California, but you don’t “own” your home “for purposes of federal law.”  Such a dual property system would undermine the institution of property, and the traditional power of States to define property, every bit as much as allowing a dual system of state and federal marriage undermines the institution of marriage, and the traditional power of states to regulate marriage.

That Roberts could get the Obama administration’s Solicitor General (or any Solicitor General of the United States) to deny that this assertion of a federal power would pose a “federalism problem” was not much of a challenge.  That is what U.S. Solicitor Generals are paid to do.  But, as we already saw, Ms. Kaplan’s answer was better.  As she elaborated:

MS. KAPLAN: Well, that’s what the Federal Government has always chosen to do. And that’s the way the Federal law is structured, and it’s always been structured for 200 years based on the State police power to define who’s married. The Federal Government I presume could decide to change that if it wanted, and somehow, it would be very strange for all 1,100 laws, but for certain programs — you have different requirements other than marriage, and that would be constitutional or unconstitutional depending on the distinction.

But the truth is that, as litigators, both the Solicitor General and Ms. Kaplan’s mission yesterday was to get the Court to accept their Equal Protection claims, not make a federalism objection to the power of Congress to enact DOMA.  That is why we filed our amicus brief.  It is to Ms. Kaplan’s credit as an advocate that she eventually offered the correct reply to the Chief Justice’s hypothetical on the fly.

So Chief Justice Roberts did indeed ask a helpful and clarifying question to which Michael Greve’s slogan of “one sovereign one problem” provides the answer:  there is a serious federalism problem if you can be married for purposes of federal law but not for purposes of state law or vice versa.  “Marriage” ought to be an on or off status.  So you must choose.  Under our system of federalism, which “sovereign” has the power to define marriage?  The correct answer is the traditional one: the States.

The power to define marriage is not an enumerated power.  And, as we explain in our brief, the blanket definition offered in Section 3 of DOMA was obviously not “plainly adapted” to any enumerated power — or, put another way, it was not “really calculated to effect any of the objects intrusted to the [federal] Government” — as McCulloch requires for an incidental power claimed under the Necessary and Proper Clause.  Contrary to what Nick Rosenkranz intimated here, this requirement of McCulloch has never been formally repudiated by the Court, and the canonical “plainly adapted” standard is routinely quoted:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

In Section 3 of DOMA, Congress asserted a power over marriage that it does not have.