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.