Linda Greenhouse’s Misrepresentation of the Federalism Argument Against DOMA

In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief co-signed by several federalism scholars, including co-bloggers Randy Barnett, Jonathan Adler, Dale Carpenter, and myself. She claims that it is a “Trojan horse” for an effort to block same-sex marriage, and that it is somehow inconsistent with various Supreme Court decisions striking down state laws that violate individual constitutional rights protected by the Fourteenth Amendment:

Beware of conservatives bearing gifts.

Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?..

[S]triking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture…

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th….

Just such a vigorous constitutionally based states’-rights argument was put forward in a brief filed in the case last month by a half-dozen law professors under the title, “Brief of Federalism Scholars.” One of the group, Prof. Randy Barnett of the Georgetown University Law Center, is justly regarded as the intellectual father of the Commerce Clause attack on the Affordable Care Act. “DOMA falls outside Congress’s powers” because “marriage is not commercial activity,” the brief declares. It argues further that by limiting federal recognition to marriages between men and women, the law “undermines the states’ sovereign authority to define, regulate and support family relationships.”

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)…

And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races.

Greenhouse’s argument is based on a fundamental error: she conflates structural limits on Congress’ authority outlined in Article I of the Constitution with individual rights constraints on the states. In reality, it is perfectly possible for a particular law to be both beyond the scope of Congress’ authority if enacted by the federal government and a violation of constitutional individual rights if adopted by a state. Our federalism brief merely claims that Congress lacks the constitutional authority to enact DOMA because the law exceeds the scope of Congress’ enumerated powers. That conclusion is perfectly consistent with the view that state laws banning gay marriage violate individual rights protected by the Fourteenth Amendment. Indeed, I myself have argued that the Court should strike down California’s Proposition 8 because it is unconstitutional sex discrimination. Similarly, we would argue that a federal law banning interracial marriage is also outside the scope of congressional power under Article I, while simultaneously endorsing the holding of Loving v. Virginia that state laws barring such marriages violate the Equal Protection Clause of the Fourteenth Amendment. The states’ sovereign authority over marriage – like all state sovereign authority – is constrained by constitutional individual rights. Nothing in our brief is inconsistent with that basic principle.

Greenhouse’s piece also contains several other errors. For example, our argument in the federalism scholars brief does not rely on the Tenth Amendment, and most of us are not “conservatives.” At least three of the six signers (Randy, Jonathan, and myself) are libertarians. Perhaps most important, the majority of us are actually gay marriage supporters, and therefore it is unlikely that we are somehow trying to “prop up” the anti-gay marriage “status quo,” as Greenhouse suggests. Dale Carpenter is one of the leading academic advocates of gay marriage, and has been involved in that cause and other gay rights issues for many years. Few people are less likely defenders of the “status quo” on these matters than Dale.

Unfortunately, this is not the first time that Greenhouse has misrepresented the views of her opponents on constitutional federalism issues, including myself. There is plenty of room for legitimate disagreement about both our federalism argument and other important issues at stake in the gay marriage cases. But the debate is not advanced by crude misrepresentation of our adversaries’ views.

UPDATE: I have fixed what was previously a broken link to Greenhouse’s column. My thanks to readers for pointing out this problem.