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.

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.

In his last post on the subject, Nick Rosenkranz concludes that “the mere fact of a federal definition, for purposes of federal law, does not violate principles of federalism.” On this we are entirely agreed. And if all Congress sought to do with Section 3 of DOMA was to define the semantic meaning of a word, there would be no problem. But that’s not all Congress sought to do. Further this is not a case in which we (or anyone else) is asking the Court to pour through legislative history to divine Congressional intent, as the true purpose of DOMA has never been contested.

The ultimate question in the DOMA litigation is whether Congress has a legitimate federal interest in having a particular definition of marriage that supports the traditional form, and whether this interest is sufficient to justify the differential treatment (and disregard of marriages recognized under state law) that DOMA produces. One might have a definition so that we can know what the words mean in federal statutes, and yet still not be able to defend them with the same interests that a state might assert (as I explained here). In order to strike down DOMA, the Court need not conclude that federal law must forever and always accept state law definitions. All it needs to do is recognize that defining marriage is a traditional function of the states, not the federal government, and, as a consequence, there is no federal interest sufficient to justify DOMA.

Before oral argument in the California Proposition 8 gay marriage case, Georgetown law professor Marty Lederman wrote a post outlining five possible options before the Court; I commented on it here. Since the argument, Lederman believes the number of possible options has grown to seven, as he outlines in this interesting post. The two new options are that “the Court might dismiss the petition as improvidently granted – a “DIG”; or that the Court could vacate the court of appeals’ decision and remand the case for reconsideration in light of whatever the Court does in Windsor, the DOMA case.”

Like most commentators, Lederman predicts there is a substantial likelihood that the justices will dismiss the case for lack of standing. Like me, he still believes there is a good chance the Court will strike down Proposition 8′s ban on same-sex marriage if the justices do make a decision on the merits.

Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention.  Here’s a brief round-up of some recent commentary:

• Mike Dorf, “The Federalism Argument that Should Have Been Made Against DOMA” - arguing that DOMA’s opponents missed an opportunity at oral argument to appeal to Justice Kennedy with an embrace of federalism concerns;
• Jeffrey Rosen, “Flip-Flopping Federalists” - suggesting a tension between the usual conservative impulse to limit federal power and support for DOMA;
• John Eastman, “The Faux Federalism Argument Against DOMA” – as suggested by the title, an argument that DOMA presents no real federalism concerns (which is interesting coming from someone who has argued the federal government has no power to spend money beyond the scope of its enumerated powers);
• Geoff Stone, “The Same-Sex Marriage Cases: Snatching Victory . . .” – the federalism argument “makes no sense”
• Erwin Chemerinsky, “What Might Happen?” – the federalism argument, if adopted, would produce a “radical change” in constitutional law;
• Peter Lawler, “Same-Sex Marriage, Federalism, and Judicial Restraint” – noting the DOMA litigation rasises issues of both “judicial activism” and “congressional activism.”
• Ilya Shapiro, “If Supreme Court Has Jurisdiction, DOMA Likely Falls, With a Controlling Federalism Opinion from Kennedy Alone” – a rosy prediction.

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.

In a post below, Orin notes that many federal statutes define the meaning of the term “property,” even though property is generally defined under state law.  If this is so, Orin understandably wonders, how could there be a problem with Congress defining marriage for purposes of federal law in DOMA?

The short answer to Orin is that all of the examples he cites are fairly straightforward examples of Congress adopting definitions that do no more than help facilitate the implementation of a given federal program and all lie within the scope of federal authority. What matters is not whether Congress invokes a particular word — there is no list of “special words” immune from the feds — but what it is that Congress is actually doing. So,  the claim is not that any effort to define “property” for the purposes of a given federal law or program necessarily “undermin[es] the institution of property,” but that where Congress actually acts to “undermine the institution of property,” it cannot defend the constitutionality of such action by claiming that all it has done is adopt a simple definition.

None of us have disputed that Congress has the power to define terms where doing so is necessary and proper to carry into execution the federal government’s enumerated powers.  So, for example, our brief notes that federal immigration law contains an antifraud marriage provision at 8 U.S.C. § 1186a(b)(1)(A)(i).  Though this provision addresses marriage, it is not particularly problematic.  As we explain in our brief:

this provision limits resident-alien status to members of a “qualifying marriage,” which excludes marriages that were “entered into for the purpose of procuring an alien’s admission as an immigrant.” 8 U.S.C. § 1186a(b)(1)(A)(i). It is at least conceivable that, in particular situations, the national government could demonstrate a need (apart from desiring to encourage a particular definition of marriage) to exclude same-sex couples. But, although the Necessary and Proper Clause might support a targeted limitation of state-conferred marital status for federal purposes, DOMA is a sawed-off shotgun. A federal definition of marriage that indiscriminately applies to more than 1100 federal statutes and programs can be “plainly adapted” to none of them.

The same is true for property. None of the examples Orin cites seem particularly problematic. Yet I think it quite clear that were Congress to enact an across-the-board definitional statute that, say, excluded automobiles, corporate stock, or other forms of property traditionally recognized under state law as “property” for all federal purposes, such a statute would be unconstitutional. Such a statute would do more than provide a handy definition for the administration of one or more federal schemes. It would represent an assault on the traditional state function of defining property, and could not be defended as “plainly adapted” to the implementation of federal law. (It might also violate other constitutional guarantees as well.)

The question, again, is not whether Congress adopted a definition of some special term, but the actual effect and intent of the legislative act in question. And while I understand the reluctance to launch open-ended inquiries into legislative pretext, in the case of DOMA, no such inquiry is necessary.  Congress was quite explicit about what it sought to do: “Defend” a traditional definition of marriage against changes adopted under state law. That Congress sought to do this through the adoption of a legal definition is of no import. Congress has no power to pursue such a goal, and there is no distinctly federal interest to invoke in Section 3′s defense.

For those interested, we’ve had some sparring over at NRO as well. I commented here. Ed Whelan has rejoinders here, here, and here. I hope to respond more directly to Ed’s points on NRO tomorrow.

In a recent op ed, Harvard Law Professor Noah Feldman argues that striking down the Defense of Marriage Act on federalism grounds – as advocated in an amicus brief I signed along with several other federalism scholars, including co-bloggers Jonathan Adler, Randy Barnett, and Dale Carpenter – would lead to “litigation chaos”:

[T]he problem with this gradual strategy envisioned by court observers and attributed to [Justice] Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation....

To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.

In the first, most optimistic scenario, one or several marriage-friendly states might allow anyone from any state to get married there, creating a Las Vegas-style business in same- sex marriage. Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out- of-state marriages, and deny them state-level marriage benefits.

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions — across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is.

If no state wanted to attract business by becoming the same-sex-marriage hub for out-of-state residents, then the anomaly would arise when legally married gay couples moved to states that didn’t recognize their unions. Presumably they would nevertheless bring their federal benefits with them — giving rise to the same legal issues just described.

To be honest, I simply don’t see the problem here. If same-sex couples get married in State A, receive federal marriage benefits, and then move to State B, which denies them state-level marriage benefits, there is no need for litigation of any kind. The couple in question will have federal marriage benefits, but no state ones (at least none from State B). Obviously, the couple might want to get state benefits from B and could potentially file lawsuits claiming that State B is engaging in unconstitutional discrimination against same-sex couples. But they could file the exact same lawsuits even if DOMA remains in place. We already have married same-sex couples that move from states that recognize same-sex marriage to those that don’t and seek to obtain benefits as a result. State and federal courts will have to address those cases regardless of whether or not DOMA gets invalidated on federalism grounds. The fact that if DOMA is struck down these couples will get federal marriage benefits does not require states to grant them state benefits.

To be sure, many states base tax status on residents’ federal tax returns. If same-sex couples could file as “married” on their federal tax returns, states that don’t recognize same-sex marriage might end up implicitly giving such people “married” tax filing status. However, if the state government doesn’t like that result, they could simply alter state tax law to forbid same-sex couples married in other states from filing as “married” on their state tax returns. This would be easy for states to do and need not give rise to any complex litigation. Many states already have tax deductions that are different from those on federal returns.

Feldman also scares readers with the following creative scenario:

Some scenarios are downright funny. Suppose I married someone of the same sex in New York and that marriage wasn’t recognized in Pennsylvania. If I then decided to marry someone of the opposite sex in Pennsylvania, the state would presumably recognize that marriage while New York recognized my previous one. And both marriages would be recognized by the federal government, which would treat me as a lawful bigamist. That would be good news for 19th century Mormons, who were denied a federal constitutional right to plural marriage — but most people today would find the conclusion truly bizarre.

As a legal scholar myself, I enjoy clever law professor hypotheticals as much as the next guy, probably even more. But this one has little real-world bite. As a practical matter, it is unlikely that any significant number of people will want to enter both a same-sex marriage and an opposite-sex marriage at the same time. If someone did try to do it, states that don’t recognize same-sex marriage could protect themselves against the possibility simply by enacting a law stating that they will not recognize a marriage contracted by a person who is still a participant in a same-sex marriage or civil union contracted in another state. Doing that would not require the state to recognize same-sex marriage generally. As for the federal government, refusing to recognize a second marriage entered into by a person who has never divorced their first spouse need not involve any federal encroachment on state governments’ powers to define marriage. After all, no state allows people to enter into multiple marriages at the same time either.

Some degree of conflict and legal uncertainty is inevitable in a federal system where different states have divergent marriage laws. But invalidating DOMA on federalism grounds would not significantly exacerbate these problems, much less lead to legal “chaos.”

UPDATE: Congress could also try to address these possible issues by basing eligibility for federal benefits on the marriage law of either the state of residency or the state where the marriage in question was initially contracted. Either approach would avoid the federalism problems created by DOMA, since neither would be a pretext for an effort to try to pressure states to define marriage in a particular way.

UPDATE #2: Ed Whelan responds to this post here:

Those crediting the federalist argument against DOMA have generally been claiming (wrongly) 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....

Somin’s claim is radically different. Under his account, the federal government would not be deferring to and applying the definition of marriage in the state in which a couple resides. Instead, for same-sex couples that lawfully marry in any state that allows same-sex marriage, the federal government would provide federal marriage benefits for those same-sex couples if they live, or if they later move to, a state that doesn’t recognize same-sex marriage. In short, under the false flag of federalism, Somin would have the federal government nationalize federal marriage benefits for same-sex marriages.

Somin’s position also gives the lie to the absurd claim that he and his co-signatories make that DOMA’s definition of marriage for purposes of federal benefits somehow intrudes on state authority over marriage. Whether or not Somin’s position is correct, Somin, by taking it, necessarily acknowledges that it is permissible for federal marriage benefits to apply to those living in a state without tracking that state’s definition of marriage. So much for the federalist argument against DOMA...

If [Somin] is right, he and the other signatories to the amicus brief of “federalism scholars” have submitted a highly deceptive brief that, in the mistaken name of federalism, would nationalize federal marriage benefits for same-sex spouses. If he is wrong, he has signed his name to an amicus brief without having giving serious attention to what his position actually means.

Whelan is wrong to claim that there is some deep contradiction in my position, much less that the brief I signed was “deceptive.” The position defended in the brief is that the federal government cannot adopt a general national definition of marriage and must instead respect state autonomy in that area. Deferring to the definition of marriage in force in the state where the marriage was contracted is deferring to the states. No one can enter a same-sex marriage unless they do so in a state where it is permitted. If a same-sex couple migrates, the receiving state can still maintain its refusal to recognize SSM. And as a practical matter, we are only talking about a small number of cases here. Gays and lesbians are only about 3% of the population and those who enter SSMs in states that permit it and then move to states that don’t are likely to be a tiny fraction of that.

Whelan’s claim that allowing couples that entered same-sex marriages to continue receiving federal marriage benefits when they move to a different state interferes with state definitions of marriage just like DOMA does is also weak. There is no meaningful comparison between an act that affects over 1100 different benefits and impacts all SSM participants everywhere and is deliberately intended to promote “traditional marriage” with the framework that I describe, which involves no such pretextual intent on the part of Congress, and in practice would have only very minor effects.

Finally, I would add that Congress can choose to condition federal marriage benefits on the law of the domicile state rather than on the law of the state where the marriage was contracted. Either approach is consistent both with my original post and with the position we took in our brief, because both avoid establishing a federal definition of marriage and both ultimately defer to state law. In my discussion above, I merely assumed the framework outlined in Noah Feldman’s op ed, and noted that it would not result in the “legal chaos” he predicted. But it’s not the only possible framework for determining eligibility for federal marriage benefits. Randy Barnett makes some related points here.

Most commentators, including the VC’s own Dale Carpenter, have concluded after the Proposition 8 oral argument that the Supreme Court is unlikely to strike down the California law banning gay marriage. I predicted such an outcome last year, and in this recent post, pointing out that the Supreme Court is unlikely to announce a nationwide right to gay marriage at a time when 41 states still deny it, and that there is no logical way for the Court to justify a “minimalist” decision that would apply to California alone.

Nonetheless, I think many people have been too quick to bury the anti-Proposition 8 cause after Tuesday’s argument. I agree with Dale and others that the Court may well dismiss the case on standing grounds. But if it reaches the merits, it is far from certain that Proposition 8 will survive. As most experts agree, the four liberal justices are likely to vote to strike down Proposition 8. So they would need to pick up only one conservative justice to get a majority. The key swing voter, Justice Anthony Kennedy, expressed skepticism about some of the plaintiffs’ arguments. But he also suggested he is considering the possibility that Proposition might constitute sex discrimination, in which case it would be subject to heightened “intermediate” scrutiny that it probably cannot survive. Moreover, he expressed concern about the 40,000 children being raised by gay and lesbian couples in California. Finally, it is difficult to gauge the impact on Kennedy of a striking concession made by Charles Cooper, the lawyer defending Proposition 8:

JUSTICE SOTOMAYOR: Outside of the -­ outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not have any — anything to offer you in that regard.

If there is no rational reason for a state to discriminate against homosexuals in any other area of public policy, it’s hard to see why there is one in the marriage context – especially in a state like California, where gays and lesbians already have the right to adopt children, and – through civil unions -already have all the substantive legal rights usually associated with marriage. In such a context, the denial of marriage rights to gays and lesbians seems largely a result of anti-gay prejudice, and Kennedy is the author of the Supreme Court’s 1996 decision in Romer v. Evans, which ruled that “animus”-based discrimination against gays and lesbians is constitutionally suspect.

As is often the case with Justice Kennedy, his intentions are not easy to read. He could well decide to uphold Proposition 8, or – more likely – choose not to reach the merits of the gay marriage issue at all. But if the Court does decide on the merits, it is not a foregone conclusion that Proposition 8 will survive.

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.