The Volokh Conspiracy

Today, along with thousands of others who made it possible, I’ll be at Governor Dayton’s signing of the bill extending marriage to same-sex couples in Minnesota starting August 1.  Obviously, this is the culmination of years of effort, but especially the hard work we’ve done since a constitutional amendment was first placed on the election ballot in the state two years ago.  It’s one of the most remarkable turnarounds in recent political history.  By passing that amendment, the legislature unintentionally created a movement that really had not coalesced here. 

As they have in every other state, opponents tried to claim that the law would endanger religious freedom.  But these arguments were rebutted, as they have been elsewhere, by the singular observation that marriage laws as such do not create the legal conflicts opponents say they fear. 

This is a moment to celebrate for those of us who believe that gay families can and should be protected through marriage, and do not see any evidence or reason to believe opposite-sex marriages will be hurt in the process.  Nobody’s freedoms have been taken away.  But some of my friends, including a couple who’ve been together for 26 years, will finally be able to marry. 

We can’t be under any illusions that the path ahead will be easy or quick (barring a monumental Supreme Court decision).  After a few more states, we will start to run up against constitutional amendments that were passed in a marriage panic a few years ago.  Undoing them will not be as simple as citing polling data,  even the data that show young people overwhelmingly favor same-sex marriage.  The thing about generational change is that it takes a generation to run its course. 

But in one more state, in the heart of the country, and by legislative rather than judicial decision, there is no longer gay marriage.  There is only marriage.

Twelve down, 38 to go. 

At Noon Central time, the Minnesota Senate will begin debate on a bill extending marriage to same-sex couples.  The state house of representatives approved the bill last Thursday, on a vote of 75-59.  If the bill passes the senate, it goes on to Governor Mark Dayton, who has pledged to sign it. 

You can watch the live feed of the proceedings here.

At Noon (central time) today, the Minnesota House of Representatives will begin debating a bill that would extend marriage to same-sex couples.  The bill, as I explain in today’s St. Paul Pioneer Press, is among the most protective of religious freedom in the country.

You can watch the debate on the website of the Minnesota house by clicking here.

The vote will be close.  If the bill passes the state house, it is expected to head to a vote in the state senate on Monday.  Governor Mark Dayton would sign it, making Minnesota the 12th state to recognize same-sex marriage and the first in the Midwest to do so by legislative action.

UPDATE: The marriage bill passed the state house, 75-59.  Of the Democrats, 71 (out of 73) supported it.  Four (out of 61) Republicans supported it.

The state senate in Delaware is having a final debate on a same-sex marriage bill. The audio is available here, just click on “Senate in session.” 

The Minnesota state house of representatives will vote on a marriage bill on Thursday.

UPDATE: The Delaware Senate just passed the bill, 12-9.  The state house has already passed the bill.  The governor will sign it, making Delaware the 11th state to legalize marriage for same-sex couples.

You can watch it here. Rhode Island will be the 10th state to recognize same-sex marriage. More to come soon.

UPDATE:  Watch the R.I. Governor’s signing ceremony here.

On Monday I’ll be speaking before the ACS chapter at Yale Law School on the topic, “What Has Lawrence Meant? Litigation and LGBT Rights on the Tenth Anniversary of Lawrence v. Texas.”  The presentation will be in Rm. 129 from 1-2 p.m.

On Tuesday I’ll be speaking at Minnesota State University-Mankato on “The Role of the First Amendment at a Public University,” a talk occasioned by a recent controversy at the school over the presence of a Chick-Fil-A on campus.  I’ll be giving the talk twice. once from 3:30-4:30 p.m. and a second time from 7:30 to 9:00 p.m.  Both will be in Morris Hall, Rm. 101.

The scandal goes on.  Adam Liptak reports.

Some commentators mistakenly think a federalism-based approach to the DOMA case will cause a flood of litigation and generate massive legal uncertainty, but that’s not the real chaotic threat at the Court.  Orin notes the practice of paying people to stand in line for you to get into the Supreme Court for oral argument in important and highly publicized cases.  I can speak to this phenomenon first-hand. I attended the oral argument in the marriage cases on both days and witnessed it up close, along with even more questionable queueing practices.  Forget about federal court jurisdiction.  What’s happening in the lines outside the Court in these big cases is a scandalous display of bad manners.  It was the real standing problem in the marriage cases.

There are actually two lines to get into the chamber, which has very limited seating capacity.  One is for the general public, and in high-profile cases it’s quite long.  The other is for lawyers who become members of the Supreme Court bar.  Bar members enjoy a limited number of reserved seats at the front of the audience, right behind the lawyers for the parties in the case.  The public sits in the back, although given the small size of the courtroom their seats are very good — if they show up early enough to snatch a place. 

I joined the Supreme Court bar ($200 one-time fee) in order to get into the marriage arguments. I knew the lines would be long, so I arrived Tuesday morning at about 3:15 a.m., thinking that would be good enough to get me in.  I was about 57th in line at that point for about 100 seats in the bar section.  In front of me were mostly paid line-standers who had been waiting in the 30-degree temperatures all night.  I talked with quite a few of them.  None were members of the bar.  Almost all were impoverished and black.  Many of them slept on the ground, in cold and wet conditions, for several nights.

As daylight approached, a lot of equality advocates arrived to take their premium places in line.  These “clients,” as the line-standers called them, paid about $50 an hour to line-standing-service middlemen organized as businesses (I don’t know what the actual line-standers earn per hour).  For the Prop 8 case,  it cost as much as $6,000 to get to the front of the line and guarantee a seat in the courtroom.  Neither the Supreme Court nor any law-enforcement authorities prohibit this practice.

I don’t categorically object to line-placement capitalism, especially for private functions like buying tickets to a rock concert.  It’s an economic exchange in which the highest bidders get what they want and others sell their services and earn money they wouldn’t otherwise get.  It does seem odd to hold what’s effectively a private-market auction for seats at a public hearing of the country’s highest court.  Many of the buyers who participated in this particular market, given what I know of their other political preferences, would be hard put to defend this system in a public forum. 

They started letting us into the Court at about 7:30 for the Prop 8 argument on Tuesday.  I got into the main room, third row from the front, not more than 50 feet from the Justices.  Getting there early — and being able to stand in a separate bar-members line – had paid off.

But what happened the next day for the DOMA argument was appalling.  I arrived at 2:15 a.m. when the temperature was a balmy 40 degrees and was headed down.  I was 46th in line, again with a group consisting almost entirely of paid line-standers in front of me.  There were very few bar members personally waiting in line at that time.  The Court had space for fewer bar members that day in order to make room for an extra table for counsel arguing the jurisdictional issues.  But even with more limited seating, #46 was still sure to get in.

As 7 a.m. approached and the lawyers arrived to take their pre-paid places in line, something else happened.  They started inviting their friends to join them at the front of the line, pushing back people who had waited all night to get in.  The lawyer-clients of several of the line-standers near me never arrived to relieve their assigned line-standers, no doubt because they cut in line further up than what they had paid for.  Pretty soon, I was #55 and then #65 and then I lost count. 

I wasn’t the only one dismayed by this development.  We confronted some of the line-cutters, who feigned ignorance or said they’d paid or claimed they’d actually been standing in line all night.  Of course, we’d just seen them arrive in a fleet of eco-friendly Priuses, alternately sipping their mocha pepperaminto skim milk lattes and chatting excitedly about egalitarianism’s next frontier.  The same line-cutting behavior was infecting the public queue.  The only available remedy would have been self-help.

I didn’t get into the courtroom for the DOMA argument.  Instead, I was shuttled with dozens of other exhausted people into an overflow room where we listened to the proceedings.  There was an advantage to this alternative room:  we were allowed to react more visibly and audibly to the arguments.  We weren’t expected to sit there impassively like Justices at a State of the Union speech.  Considering that I sat near the likes of Walter Dellinger and Paul Smith, my initial frustration subsided, though I can’t say the same for all of the other people who lost their seats in the courtroom. 

I’m not sure what the alternative to this state-of-nature queueing at the Court would be.  Social pressure and shame obviously aren’t enough to enforce good manners and common decency.  But as a colleague of mine observed, if Walmart can figure out how to prevent stampedes on Black Friday, there must be a better way to decide who gets past the pediment that says “Equal Justice Under Law.”

Overnight, it seems, federalism has become a major ground on which the Defense of Marriage Act is being contested.  This is surprising because, as we saw Wednesday in the arguments of Roberta Kaplan and the Solicitor General, there were no real advocates for federalism as an issue during the oral argument in United States v. Windsor.  No advocates, that is, except for five of the nine people sitting behind the bench.

But what exactly is the federalism objection to DOMA?  Despite some misapprehension to the contrary, it doesn’t rest principally on Tenth Amendment case law establishing an ”anti-commandeering” principle.  And it’s not that marriage is a subject over which the federal government must always, forever, and for every purpose be obedient to individual states’ whims. That would present what we might call a reverse anti-commandeering problem.

Instead, the federalism concern with DOMA breaks down into at least three different but related types of problems.

(1) The federal-power problem. DOMA is an exercise of federal power. So the first question is, where does the federal government get the power to enact a comprehensive definition of marriage? George Will thinks DOMA is a “usurpation of state power.”  James Taranto at the Wall Street Journal agrees.  Michael McConnell, perhaps the leading conservative judicial scholar of his generation, put it this way in an op-ed in the Wall Street Journal:

The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The federalism amicus brief in Windsor argues this point in some detail. It’s not a novel concept in the Court’s federalism cases. It’s also uncontroversial, at least among those who believe there are meaningful limits on federal power, and even among some who don’t think those limits are entirely judicially enforceable, like Justice Breyer.

Some commentators have tried to avoid the implications of this tradition by arguing that DOMA simply facilitates the exercise of Congress’s underlying power to, say, administer and implement federal taxation, an enumerated power. In doing so, they argue, Congress must be able to define the terms it uses.

But just as it’s axiomatic that Congress may generally define the words it uses, it’s also axiomatic that Congress may not violate the Constitution in the guise of defining terms. Definitions that control the administration of a program are subject to constitutional constraints, just as the underlying program is. Consider Adarand Constructors v. Pena, involving a law that gave federal contractors a financial incentive to hire subcontractors owned by “socially and economically disadvantaged people,” but defined this group presumptively to include certain racial minorities. The definition did not fool the Court, which held that the financial incentive was based on race and thus was suspect. If the federal government uses the Dictionary Act or any other definitional provision in a way that violates the Bill of Rights, it’s just as unconstitutional as if the definition were embodied in the heart of the operative statutory text. So it is with definitions that effectively expand federal power beyond those enumerated or necessarily and properly implied in Article I.  Congress may just as effectively erode the nation’s historic commitment to state primacy in the field of family relations through the ruse of a definition as it may by explicitly preempting state control over these matters.

So we get back to the basic question: is an an all-encompassing federal definition of marriage within Congress’s explicit or implied powers?  The federalism amicus brief argues at length why it’s not.  As Justice Kennedy noted, marriage touches almost every area of the law and every aspect of family life. It’s facile to say that DOMA can be logic-chopped into 1100+ individual definitions, ignoring that the combined effect is to complicate, burden, and discourage state policy choices and experimentation on a matter of traditional state concern that pervades the daily lives of ordinary people.

(2) The legitimate-federal-interests problem. Under equal protection principles, every law must serve at least some legitimate government interest. Some interests, like animus against a class of persons, are impermissible no matter how rationally related the means are to accomplishing the objective.  Bare moral disapproval also doesn’t legitimate discrimination preferred by a legislative majority.  Racial supremacy is an impermissible objective. Enforcing traditional gender roles is an impermissible objective.  The enumerated-powers doctrine and the underlying federalist structure similarly take some asserted federal interests off the table in an equal protection analysis. The federal government is barred from invoking interests that lie beyond its powers to pursue. Pursuing them is illegitimate in an equal protection case, just as racist or sexist interests would be.

What interests might the federal government claim for DOMA?  It’s not a puzzle.  Literate people know because Congress told us what its interests were and even now its defenders assert broad federal objectives.  First and foremost, beyond an unadorned moral disapproval of homosexuals, Congress wanted to “defend marriage” against state policy innovations it disliked. It wanted to put its heavy thumb — including its considerable regulatory authority and mighty financial weight — on the side of defining marriage as it thinks best, helping states that agree and discouraging states that don’t.  But the federal government has no legitimate interest in defending marriage in toto. It’s the role of the states to define marriage, subject only to constitutional constraints on their power. Congress may have specific interests in recognizing only certain state-granted marriages for limited federal purposes, like preventing marriages fraudulently entered in order to evade immigration laws. But the states, and only the states, create and license marriages.

Congress may assert other related interests, like promoting uniformity in federal treatment of marriage. But in our history, uniformity in the recognition of marriage has never been a federal end unto itself. The only uniformity Congress has promoted in recognizing relationships is a uniform acceptance of state-law marital status. The baseline in the field of marriage is state, not federal, choice. The analysis of benefits and burdens on state choices must start with a State-choice baseline.  When Congress doesn’t take that baseline as the starting point for its legislation, but instead starts with its own blunderbuss definition, it discourages state choice. It must give more particular justifications than, “we want a uniform application of the federal understanding of marriage.”  If a future Congress controlled by gay-rights advocates decided that the federal government henceforth would only recognize marriages from states that enacted marriage equality, thus stripping opposite-sex couples of federal marriage rights in non-equality states but not in marriage-equality states, would a chorus of federalism deniers be heard to say that Congress was simply defining its programs with no impact either way on state choices in the matter?

Well, how about a federal interest in promoting “responsible procreation”?  I suppose one might think that having well-reared citizens is necessary and proper to keeping the postal roads paved, or to raising a good army and navy.  But saying that Congress may fully regulate matters of family law in order to produce better citizens would end limits on federal power in this historic state realm because “the aggregate effect of marriage, divorce, and childrearing” on the nation’s prosperity and defense ”is undoubtedly significant.”  United States v. Morrison (2000).

The point here is that federalism offers us answers to some equal protection problems when the federal government regulates citizens. Some asserted federal interests simply aren’t within the scope of legitimate federal concerns.  Such interests might justify State legislation but can’t be used to justify a federal classification, no matter what level of scrutiny the Court applies in its equal protection analysis.

(3) The animus problem. At oral argument, Justice Kagan pointed out that given our respect for State control over the law of family relations, and especially the tradition of accepting state definitions of marriage as determined by the States, DOMA is an unusual exercise of federal power.  There is little or no historical precedent for an across-the-board national definition of marriage.  A departure from customary practice can signal impermissible discrimination.  Arlington Heights v. Metropolitan Housing Corp. (1977) (“The historical background of the decision [including substantive departures from normal decisionmaking] is one evidentiary source ... of official actions taken for invidious purposes.”)  That alone might raise the suspicion that it is based on impermissible animus, or as one might put it more gently, a casual and thoughtless disregard for the interests of an entire class of citizens.  Federalist practice can inform the analysis about whether the federal government has acted on an impermissible interest in isolating a group of citizens, making them strangers to the law, and even, formally, strangers to each other. Classifications of an unusual character in the structure of our federal system should increase our alertness to the possibility that invidious discrimination is afoot.  No suspect-classification designation need be adopted to conclude that such a law denies citizens the equal protection of the law.

So here, too, the equal protection analysis and the federalism analysis are linked, as the federalism amicus brief argues.  The Court could base its decision on equal protection principles informed partly by federalist practice and constitutional structure.  Or it could base its decision squarely on federalism and limited-powers grounds without direct reliance on equal protection.  The doctrines reinforce each other.  And they bolster the conclusion that DOMA is unconstitutional.

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.

Here’s what I had hoped to be able to post after the oral argument in the Prop 8 case yesterday, but was unable to because I couldn’t get into the site.  Yesterday it seemed urgent; today not so much.  But here goes:

Ten years ago today, I attended the Supreme Court oral argument in Lawrence v. Texas. Then, the constitutional argument had been honed to make it clear to the Court that striking down the Texas Homosexual Conduct law would be following the nation, not leading it. Then, the path to eradicating sodomy laws had been trod for 40 years, as state after state abandoned the criminalization of sexual intimacy among same-sex couples. Then, the state had no defense of its law except that a majority preferred it that way. Then, the gay-rights advocate was masterful, both passionate and deeply analytical, stumbling only briefly over one tangential question. Back then, while there was no certainty about the outcome because the swing Justices (Kennedy and O’Connor) had given nothing away, there was a jubilant expectation among gay-rights advocates that the Court would strike down sodomy laws.

The contrast to today’s oral argument in Hollingsworth v. Perry, which I also attended, could hardly be more vivid. Today, several Justices seemed to think that a constitutional resolution would be leading the nation, not following it. And it would be doing so, asserted Justice Alito, to end a debate over something that was newer than cell phones and the Internet. Today, opponents of gay marriage could raise vague doubts about the uncertainty in the “sociological evidence” on the effects of same-sex marriage, a point that Justice Kennedy reiterated (so much for the trial in the district court, whose findings weren’t even mentioned today). Unlike ten years ago, they could claim that “caution” alone was reason enough to go slowly. Today, the gay-rights advocate was on a mission, as he has been for four years, to strike a decisive blow for freedom and equality, but delivered an argument that was more rhetorical than deeply substantive. He stumbled, not over trivial questions, but over a seemingly obvious and important one: How does the Court decide when a liberty claim should be constitutionalized? When, in the words of Justice Scalia in the most heated exchange of the day, did excluding same-sex couples from marriage become unconstitutional? Today, while Ted Olson was better than his opponent, there was no historic mismatch between advocates, as there had been ten years ago. Today, as the crowd exited, there was palpable anxiety among same-sex marriage supporters, many of whom who were stunned that there weren’t at least five Justices who saw the justice of the cause. The perceived swing vote in the case, Justice Kennedy, was concerned that the Court would have to cast aside 2,000 years of history. He also waived away any comparison to bans on interracial marriage, a remark that disquieted the mostly pro-SSM audience.

In the end, as is usually the case, the oral argument probably won’t have made the difference. This was simply a Court not yet ready to declare a right to same-sex marriage, no matter how effective the oral advocacy. Still, it was a shame that today’s argument did not focus on sexual-orientation discrimination, or possibly even sex discrimination (one argument to which Justice Kennedy seemed receptive). Charles Cooper, defending Prop 8, conceded that there was not another instance in which discrimination against gays and lesbians would even be rational. That opening went unexploited. In fact, therein lies an answer to Justice Scalia’s question about when it became unconstitutional to exclude gay couples from marriage. The answer is not found in fundamental rights, the favored path of today’s marriage litigants, but in the Equal Protection Clause, whose application has long been understood to evolve as our understanding of what constitutes purposeless and oppressive discrimination evolves. Almost no discrimination against homosexuals would have been “unconstitutional” in 1791 or 1868, according to courts then constituted. Today, even the leading opponent of same-sex marriage can’t say the same.

Here are some quick impressions, based on the oral argument, about what the Court is likely to do and likely not to do:

(1) There will be no sweeping 5-vote declaration of a fundamental right to marry for same-sex couples, and no five-vote majority to declare the exclusion of gay couples unconstitutional on Equal Protection grounds. There may be four Justices willing to say so, but Justice Kennedy is just not there yet. It’s clearer now than it was even yesterday that he thinks there’s a big difference between criminalizing private sexual conduct and promoting same-sex unions to equal status in marriage. The quest for a nationwide right to same-sex marriage, begun when this litigation was filed over the strong objections of gay-rights groups in 2009, is not likely to end successfully in this case.

(2) There will probably be no “California only” answer from five justices, striking down Prop 8 alone. Justice Kennedy dismissed that possibility as odd. Chief Justice Roberts was disdainful. The “Dear Justice Kennedy” opinion of the Ninth Circuit had no vocal supporters today.

(3) There’s even less chance that there will be a “nine-state” decision, striking down only the marriage laws of the states that grant civil unions to same-sex couples, but not the status of marriage. Even some of the more liberal Justices were skeptical, quite reasonably, that a state might be “punished” for giving same-sex couples full rights except for the title of marriage. The Solicitor General’s position that the Court could order a nine-state answer now and deal with the other states later sounded like a constitutional theory that had not yet evolved.

(4) The best possible outcome for same-sex marriage advocates at this point is probably to have the Court dismiss the case on standing grounds, vacating the Ninth Circuit’s opinion, and leaving the District Court’s order in place. The Prop 8 proponents have never been able to show a particularized, personal injury from the recognition of same-sex marriage. And, despite what the California Supreme Court may have decided for state law purposes, ballot proponents do not stand fully in the shoes of the state in defending the law. If the people of California don’t like the fact that their Governor and Attorney General refuse to enforce their laws, they have a political remedy. Or they can adopt a procedure for having a stand-in appointed. But that’s an internal state governance problem; it doesn’t create Article III standing.

Chief Justice Roberts seemed sympathetic to this line of reasoning – indeed, he prodded the reluctant lawyers on both sides to address it – as did several other Justices. But surprisingly, perhaps, Justice Kennedy was ambivalent about a jurisdictional resolution: arguing at one point that the petitioners had standing by virtue of being the “official” defenders of the proposition, but arguing at another point that perhaps the Court should dismiss the petition as improvidently granted.

I could see a split decision in Hollingsworth v. Perry, with three Justices willing to uphold Prop 8 on the merits (Scalia, Thomas, and Alito), at least four Justices (Roberts, Sotomayor, Kagan, and Breyer) and possibly six (add Kennedy and Ginsburg) voting to dismiss the case on some variant of jurisdictional grounds, and/or four willing to strike down Prop 8 on the merits if pushed to do so (Sotomayor, Kagan, Breyer, and Ginsburg). That means that we’ll most likely get a jurisdictional decision, with no clear win or loss for the ultimate cause, a vacated Ninth Circuit decision, and some large questions about the scope and effect of the District Court’s order. More litigation, and political struggle, to come.

Note: this was cross-posted yesterday at the Independent Gay Forum.

Today the Federalist Society hosts a forum entitled, Same-Sex Marriage: A Variety of Perpectives on United States v. Windsor and Hollingsworth v. Perry.  There are contributions by John Eastman, Nelson Lund, Ilya Shapiro, and me.  My contribution, “Justice Scalie’s Constitutional Case for Gay Marriage,” originally appeared on SCOTUSblog last September.

In his column for today, George Will backs the federalism-based equal protection argument against Section 3 of the Defense of Marriage Act that Ernie Young and Lynn Baker, along with co-Conspirators Randy, Jonathan, Ilya, and I made in an amicus brief filed in United States v. Windsor.:

Conservatives who supported DOMA should, after 17 years’ reflection, want the act overturned because its purpose is constitutionally improper. Liberals who want the act struck down should be discomfited by the reason the court should give when doing this.

...  Because approximately 1,100 federal laws pertain to marriage, DOMA’s defenders argue that Congress merely exercised its power to define a term used in many statutes. But before 1996, federal statutes functioned without this definition, which obviously was adopted for the “defense” of marriage against state policies involving a different definition. “Before DOMA,” an amicus brief submitted by a group of federalism scholars notes, “federal law took state law as it found it.”

The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. . . .

Ernest A. Young of the Duke Law School, the principal author of the federalism brief, says the operation of DOMA cannot help but burden states because “federal and state law are pervasively intertwined.” To understand the harm that could be done by an unlimited federal power to define the terms of domestic-relations law, Young recalls when a few states, venturing beyond the national consensus, began experimenting with no-fault divorce. Suppose, Young says, Congress passed a statute refusing recognition, for purposes of federal law, of any divorce where neither party made a showing of fault:

“The couple would continue to be treated as married for purposes of federal income tax, health care programs and veterans’ benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law.”

As the scholars’ brief says, DOMA “shatters two centuries of federal practice” by creating “a blanket federal marital status that exists independent of states’ family-status determinations.” Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. . . .

Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.

 Oral argument in the case is March 27.

Two committees of the Minnesota legislature, one from each house, will consider legislation tomorrow to legalize same-sex marriage in the state. The first, scheduled to begin at 8:15 a.m. (Central) is before the state house Civil Law Committee. The committee plans to take testimony until 10 a.m. and may resume consideration of the bill Tuesday evening at 6:00 p.m.  The second hearing is before the state senate Judiciary Committee. That committee will consider the bill from 12:00 to 2:30 p.m.  In the November 2012 election, Minnesota voters defeated a proposed state constitutional ban on same-sex marriage and, at the same time, elected Democratic majorities in both state houses.  So far, there is one Republican co-sponsor in the state senate.

There may be a vote in each committee tomorrow. If the bill passes in committee, it could then move to the floor for a full vote in each house sometime before adjournment of this session in late May.  Democratic Governor Mark Dayton would sign the bill if it reaches his desk.

Live streaming video of the hearings should be available tomorrow.  The state house committee hearing (starting 8:15 a.m.) should be here.  The state senate committee (starting 12:00 p.m.) should be here.

Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional.  Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and properly implied) powers.  If DOMA Section 3 does not serve any legitimate interest — indeed, if a sweeping federal determination of marital status is constitutionally prohibited — then Section 3 cannot be justified under any level of scrutiny that might apply under equal-protection principles.  As we express it in the summary of the argument:

Before this Court addresses whether DOMA denies equal protection of the laws, there is a prior question of federal power. This question is prior not only because DOMA cannot stand if it falls outside Congress’s authority but also because DOMA can only survive an equal-protection challenge if it serves federal interests within Congress’s legislative jurisdiction. As Chief Justice Marshall recognized in McCulloch v. Maryland, only ends “within the scope of the constitution” are “legitimate.” 17 U.S. (4 Wheat.) 316, 421 (1819). That is true regardless of the level of scrutiny that this Court applies to Ms. Windsor’s equal-protection claim.

DOMA falls outside Congress’s powers. Marriage is not commercial activity, and DOMA is not limited to federal-benefit programs that might rest on the Spending Clause. Any action by Congress that falls outside its specifically enumerated powers must be justified under the Necessary and Proper Clause, and DOMA cannot pass that test. DOMA’s definition of marriage is not “incidental” to an enumerated power, see Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2591 (2012), because—as the Bipartisan Legal Advisory Group has said—its purpose is to make social policy regarding domestic relations rather than “carry into execution” some federal enumerated power. DOMA’s definition is also not “plainly adapted” to an enumerated end, see McCulloch, 17 U.S. (4 Wheat.) at 421, because it applies to more than 1100 federal statutes at once. Congress has never even considered how defining marriage to exclude same-sex couples will affect most of these statutory regimes, and BLAG does not defend DOMA in those terms. Finally, DOMA’s definition is not “proper,” see Printz v. United States, 521 U.S. 898, 923-24 (1997), because it violates the States’ equal sovereignty and lacks a limiting principle to cabin its usurpation of state control over domestic relations.

“[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.” Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). DOMA represents an unprecedented intrusion into this domain. That is true even though Congress has enacted statutes, such as for cross-border enforcement of child-custody and support orders, within the sphere of domestic relations. Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.

Congress’s establishment of a competing federal definition of family undermines the States’ sovereign authority to define, regulate, and support family relationships. Federal law is massively intertwined with state law, and state officials implement many federal programs, like Medicaid, in parallel with their own legal regimes. DOMA thus wreaks confusion and imposes substantial administrative costs that undermine States’ attempts to define marriage for themselves. These contradictory legal regimes impose costs on individuals as well, who cannot rely on a single body of law to settle their domestic status or hold a single set of officials politically accountable.

DOMA’s appropriation of the power to define marriage cannot be justified as simply defining a term relevant to administering federal programs. The statute is not called the “Defense of Marriage Act” for nothing: Congress did not act, say, to make ERISA function more smoothly, but rather because it wished to establish and promote a national definition of marriage to compete with States’ changing definitions. BLAG’s argument in defense of DOMA could not be clearer on this point. It asserts that “the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes.” Br. 19.

BLAG is wrong. The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do. That is the difference between a government with a general police power and a government of limited and enumerated powers. And it is sufficient to decide this case.

While sounding in federalism principles, the argument is ultimately aimed at the equal protection analysis the Court is set to review.  It is an argument that there is, in fact, a federalism component in the equal protection principles made applicable to the federal government through the Fifth Amendment’s Due Process Clause.  It is thus different from the 10th Amendment decision by Judge Tauro of the Massachusetts District Court in a similar case challenging DOMA.  Our argument doesn’t rely on the 10th Amendment, but on limits on federal power that would exist even without that amendment.  We take no position in the brief on whether there is also a 10th Amendment problem with DOMA.

The argument is largely the brainchild of Ernie Young, who led the drafting effort, along with the superb attorneys Roy Englert, Carina Cuellar, and Erin Blondel at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP.  You can read the entire brief here.