The DOMA Decision and Federalism

Justice Anthony Kennedy’s majority opinion for the Court in the DOMA case relies partly on federalism considerations, striking down Section 3 of DOMA in part because it goes beyond the usual scope of federal authority. In reaching this conclusion, it cites (among other sources) the amicus brief submitted by several federalism scholars, including co-bloggers Randy Barnett, Dale Carpenter, Jonathan Adler, and myself (pg. 23). As Kennedy points out, the avowed purpose of DOMA was to promote traditional heterosexual marriage, and “influence or interfere with state sovereign choices about who may be married”:

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality…” The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.

The arguments put forward by BLAG [defending DOMA before the Supreme Court] are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted…..

DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.

The above seems similar to the argument advanced in our brief, which outlines why DOMA is beyond the scope of federal authority because Congress does not have the power to try to promote a particular definition of marriage. Both we and Kennedy emphasize how DOMA’s “sweeping” nature affects an enormous range of legal rights for same-sex couples and thereby constitutes a major intervention into an area usually reserved to the states. At the same time, however, Kennedy suggests that federalism considerations are not the main basis for the decision, but only indirectly relevant:

In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage…. must respect the constitutional rights of persons….; but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States….”

Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state law policy decisions with respect to domestic relations….

Against this background DOMA rejects the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. “‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’” Romer v. Evans, 517 U.S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32, 37–38 (1928)).

As with some of Kennedy’s other important opinions, the exact meaning of this one is hard to figure out. But what he seems to be saying is that the the Congress’ pursuit of purposes beyond the normal scope of federal authority in DOMA makes the law a “discrimination… of an unusual character” and justifies imposing tougher scrutiny under the Fifth Amendment. According to longstanding precedent, the Fifth Amendment imposes on the federal government equal protection antidiscrimination principles that the Fourteenth Amendment imposed on the states. Fifth and Fourteenth Amendment precedent impose different levels of scrutiny on different types of laws, depending in part on the purposes those laws pursue. Here, Kennedy suggests that the level of scrutiny is higher if discriminatory federal laws are intruding into areas generally left to the states. Later in the opinion, he notes that ““‘[d]iscriminations of an unusual character” [require] especially require careful consideration” to determine whether they are based on “animus” against a particular class, and that “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage… is strong evidence of a law having the purpose and effect of disapproval of that class [gays and lesbians].”

The idea that federal statutes are suspect if they seek to achieve purposes outside the scope of federal power is not a new one. In McCulloch v. Maryland (1819), Chief Justice John Marshall famously wrote that Congress may not “under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government.” The rule that “unusual” laws get tighter scrutiny in equal protection cases is also not new. But the DOMA decision is the first to tie these principles together.

I would have preferred a clearer and more direct invalidation of DOMA on federalism grounds, fortrightly stating that DOMA is beyond the scope of federal power. Under Kennedy’s indirect approach, federalism turns out to be relevant, but only by the back door. This circuitousness may in part be the result of Kennedy’s desire to secure the votes of the four liberal justices, who may have balked at a signing on to a more direct federalism holding.

Be that as it may, the DOMA decision does partly rest on federalism considerations. Because Congress has ventured beyond the usual scope of its powers, DOMA is subject to tighter scrutiny under the Fifth Amendment than it would have gotten otherwise.

UPDATE: It is worth noting that Chief Justice Roberts emphasizes the federalism elements of the majority opinion:

[W]hile I disagree with the result to which the majority’s analysis leads it in this case, I think it more importantto point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to defin ethe marital relation,” ante, at 18, may continue to utilize the traditional definition of marriage.

The majority goes out of its way to make this explicit in the penultimate sentence of its opinion. It states that “[t]his opinion and its holding are confined to those lawful marriages,” ante, at 26—referring to same-sex marriages that a State has already recognized as a result of the local “community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” Ante, at 20. JUSTICE SCALIA believes this is a “‘bald, unreasoned disclaime[r].’” Post, at 22. In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt. The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area “central to state domestic relations law applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells. Ante, at 17, 20. I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.

As Roberts emphasizes, the majority’s approach subjects DOMA to tougher scrutiny because Congress’ intrusion into a field usually reserved to the states “set off alarm bells.” Obviously, part of his purpose is to limit the reach of the majority’s reasoning and prevent it from threatening state laws banning gay marriage. Unlike Roberts, I believe that such state laws violate the Fourteenth Amendment. But I think he is correct in noting the importance of federalism to the majority’s analysis of DOMA. Some of the majority’s reasoning will, I think, still be relevant to future cases challenging state laws banning gay marriage; For example, Kennedy’s conclusion that the disfavoring of same-sex couples for reasons of “animus” against homosexuality is unconstitutional. But the federalism element will not.

UPDATE #2: Justice Alito’s dissent also emphasizes the role of federalism in the majority opinion:

Rather than fully embracing the arguments made by Windsor and the United States, the Court strikes down §3 of DOMA as a classification not properly supported by its objectives. The Court reaches this conclusion in part because it believes that §3 encroaches upon the States’ sovereign prerogative to define marriage.