The Volokh Conspiracy

In today’s Proposition 8 oral argument on the constitutionality of California’s law banning same-sex marriage, Justice Anthony Kennedy – a key swing voter on the Court – asked whether such a law qualifies as sex discrimination, which he called a ” a difficult question that I’ve been trying to wrestle with”:

JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?

MR. COOPER: Your Honor, I -­

JUSTICE KENNEDY: It’s a difficult question that I’ve been trying to wrestle with it.

Charles Cooper, the lawyer for the defenders of Proposition 8 went on to assure Kennedy that it isn’t a gender-based qualification, but didn’t really explain why not. It’s not clear whether Justice Kennedy was satisfied with his answer, because another justice quickly shifted the focus to a different issue.

The issue of whether Proposition 8 qualifies as sex discrimination is indeed “a difficult question” in the sense that the idea seems counterintuitive to many. But once you consider how laws such as Proposition 8 actually work, it’s hard to avoid the conclusion that they clearly do discriminate on the basis of gender, both as a matter of logic, and under the Supreme Court precedent defining sex discrimination. I explained why here:

[A] same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.

By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation.....

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”

For reasons I outline in the post quoted above, a decision striking down Proposition 8 because it qualifies as gender discrimination would have much stronger support from logic, precedent, and the original meaning of the Fourteenth Amendment than one striking it down because it discriminates on the basis of sexual orientation.

In recent years, unfortunately, the sex discrimination argument for gay marriage has not gotten much attention. I am glad that Justice Kennedy has focused on it. I’m still not optimistic that a majority of the Court will adopt this approach, or even that Kennedy himself will. But, given Kennedy’s status as an influential swing-voter on the Court, his interest will at least help ensure that the issue gets some serious consideration.

A ruling that Proposition 8 discriminates on the basis sex doesn’t automatically mean that it will be invalidated. The Supreme Court will uphold gender-discriminatory statutes if they meet heightened “intermediate scrutiny,” which requires the government to show that the discriminatory law is “substantially related” to the promotion of an “important state interest.” But it is unlikely that Proposition 8 can meet that standard. In the oral argument, Mr. Cooper defended Proposition 8 almost exclusively on the ground that excluding same-sex couples furthers the state’s interest in marriage as a “procreative” institution intended to facilitate child-raising. But, as the justices pointed out, opposite-sex couples are allowed to marry even if one or both partners are clearly infertile (e.g. – because they are too old). Moreover, in California, as in many other states, same-sex couples are allowed to adopt children. Lesbian couples can also bear children through artificial insemination. Given that the state allows opposite-sex couples to marry even if they have no ability to bear children, while forbidding same-sex marriage to couples that can have children and in some cases already do, it’s hard to defend Proposition 8 on the grounds that it facilitates procreation or benefits children in some way.

The procreation rationale is probably enough to pass minimal “rational basis” scrutiny of the type applied to most kinds of classifications. But it’s not likely to cut it under intermediate scrutiny or any judicial inquiry that requires the state to provide a serious justification for engaging in sex discrimination.

Andrew Sullivan was arguing for same-sex marriage long before it was cool. When he made the case for gay marriage in a 1989 essay in The New Republic, “Here Comes the Groom,” he was attacked from the left by gay activists for selling out the cause of sexual liberation and slavishly acquiescing to bourgeois institutions.  How times have changed.

Richard Epstein has two recent pieces discussing the Hollingsworth and Windsor cases.  One for Hoover’s Defining Ideas, the other for Ricochet.  In these pieces he notes some of his doubts about the libertarian case against DOMA and Proposition 8, but also suggests that Justice Kennedy — if he is to be consistent with his prior opinions — should not have such reservations.

I am still uncertain of how I would come down in these two cases . . . . But my equivocation on the case should not slow down Justice Anthony Kennedy. If he wants to maintain his own definition of liberty consistently, the author of the Lawrence opinion has to go the whole nine yards and come down in favor of gay marriage. . . .

Federalism principles may weigh against Section 3 of the Defense of Marriage Act (DOMA), but what about Proposition 8? Reason.com has just posted an exchange between me and Ilya Shapiro of the Cato Institute on this question. Cato’s Ilya S. (not to be confused with our Ilya S.) argues that federalism has nothing to do with the constitutionality of Proposition 8, as the question is simply whether government refusal to recognize same-sex marriage violates the 14th Amendment. As readers might expect, I disagree.  Family has been the province of state governments since the nation’s founding and there are judicially cognizable reasons why a state may opt not to recognize a marriage as other than a union of one man and one woman.  While I support gay marriage as a policy matter, I do not think it is constitutionally compelled. I may find many of the justifications for maintaining a traditional definition of marriage unpersuasive, but I believe that when asserted by a state, they are sufficient to uphold the constitutionality of California’s policy. (Of course, if recent polling is to be believed, Proposition 8 may not remain California’s policy for long, no matter what the Supreme Court decides.)  While Ilya and I disagree on this question, I suspect we’d both agree that the real policy question for libertarians should be whether the state has to be in the marriage licensing business in the first place — but that’s a question for another time.

The Reason.com exchange starts here. My contribution begins here.

In his latest post on the federalism argument against DOMA, my co-blogger Nick Rosenkranz suggests that there can be no federalism-based constitutional objection to a statute that “defines [a word] only for purposes of federal law.” According to Nick. such a definition can only be unconstitutional if it offends some substantive constraint on government power, such as the Equal Protection Clause, and that federalism concerns have “nothing” to do with it. Randy makes several points in response to Nick’s argument, as did I in a prior post. Here I just want to focus on the claim that it is impossible for Congress to define a word, for purposes of federal law, that could exceed the scope of federal power.

For starters, we agree that Congress may define terms in order to carry into execution the federal government’s enumerated powers. Where we disagree, apparently, is the extent to which this imposes a meaningful constraint on federal lawmaking and whether it is possible for Congress to adopt statutory definition that exceeds the scope of federal power. Yet not only is this possible, the Supreme Court has said as much in scrutinizing the definitions Congress and federal agencies have adopted for statutory terms.

Let’s take one of Nick’s examples: “It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft.” 33 U.S.C. 409. As Nick notes, in 1 U.S.C. 3 Congress elsewhere defined “vessel” for the purposes of this and other federal laws. There’s no problem here, but that’s because insofar as Congress has the authority to regulate vessels in navigable waters (under the Commerce Clause) and military vessels (under those clauses conferring authority over the military), it can define what constitutes a vessel for such purposes. Such an action is necessary and proper for carrying into execution enumerated federal powers and neither threatens state authority nor aggrandizes federal power. So far so good.

Yet suppose instead of defining “vessel” Congress sought to define “channel” as used in this and other statutes. And suppose Congress defined “channel” to include, not just those waterways we may all recognize as “channels,” but also all navigable-in-fact waterways, as well as all interstate and intrastate waters including (but not limited to) intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, drainage ditches, and ephemeral streams. Such a definition does more than provide semantic meaning to a statutory term. It would also operate to extend the scope of federal power. And insofar as federal regulatory authority does not extend to all such waters – as the Supreme Court has suggested twice in the past dozen years – it would be no defense to claim that all Congress sought to do was provide a handy definition for the purposes of federal law. This is because the practical effects of this definition would be expand the scope of federal power so as to supplant state authority in an area of traditional state concern. [Note also that in the cases concerning waters, Congress at least had a long tradition of asserting federal authority over some U.S. waters, and a clear textual hook for the assertion of federal power under the Commerce Clause. With DOMA, however, Congress has neither.]

Once we have established that Congress lacks some general, all-purposes “definitions” power that is immune from judicial review, we can focus on the real question: Whether the enactment of a particular definition is necessary and proper to carry into execution the federal government’s powers. Where Congress adopts definitions to facilitate operation of constitutionally authorized federal programs or to attain enumerated purposes, there may be no problem. Where, however, Congress enacts a statutory definition so as to leverage preexisting authority so as to aggrandize federal power and intrude on an area of traditional state concern – such as family law – greater care is required.

There has been a lot of commentary about the federalism argument against the Defense of Marriage Act (DOMA). Several of my co-conspirators signed on to the “federalism brief” in the DOMA case. I expressed serious doubts about the argument a few weeks ago (as did Sasha, and Ed Whelan over at National Review Online), and Jonathan Adler and Ernie Young responded. In deference to my co-conspirators, I thought I would leave the matter there. But now that George Will and Michael McConnell have taken to the editorial pages in support of the federalism argument (as Dale and Jonathan note), I feel obliged to explain in greater detail why I think this argument is unsound.

Once again, Section 3 of DOMA provides: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” The key point here is that this provision defines the word “marriage” only for purposes of federal law.

Indeed, Ernie Young, primary author of the federalism brief, concedes that “Congress can, of course, define terms where this is ‘necessary and proper’ for ‘carrying into execution’ its enumerated powers.” But he insists that DOMA’s definition of “marriage” is not necessary and proper. I confess that I do not understand this argument.

Imagine Congress has enacted only two statutes total. The first is an exercise of the Commerce Clause power. It provides: “It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft.” 33 U.S.C. 409. The second is an exercise of the power to “make rules for the government and regulation of the land and naval forces.” It provides: “The Secretary of the Navy shall designate boards of naval officers to examine naval vessels.” 10 U.S.C. 7304(a).

I don’t think anyone doubts that Congress could add a definition of the word “vessel” to statute one, or statute two, or both. Surely, therefore, Congress can instead enact a general definitional provision, defining the word “vessel” once for purposes of both statutes. In fact, Congress has done exactly that, at 1 U.S.C. 3 (just a few sections before DOMA), and the Court has never suggested that it is unconstitutional. I imagine that all the signatories of the “federalism brief” are with me so far. They have not, thus far, expressly argued that the entire Dictionary Act is unconstitutional.

So what is it that makes DOMA different? The fact that it applies to 1100 statutes, rather than just two? The Dictionary Act, which defines “vessel” at 1 U.S.C. 3, also applies to many, many federal statutes. The fact that the many federal statutes that use the word “marriage” were originally enacted under assorted, different heads of congressional power? That’s just as true of “vessel.” (Compare 33 U.S.C. 409 with 10 U.S.C. 7304(a), two paragraphs above.) The fact that states have also chosen to use the word “marriage” in many of their statutes? “Vessel” appears in lots of state statutes too. The fact that some states have chosen to define “marriage” differently, for purposes of state law, than Congress has for purposes of federal law? Again: this is also true of “vessel.” (And even if it weren’t true of “vessel” today, could it possibly matter if California tomorrow defined “vessel,” for purposes of state law, to include sports cars? Would California thus somehow render the federal Dictionary Act unconstitutional?) The fact that state changes in the traditional definition of “marriage” are recent, and post-date DOMA? Surely, if anything, that fact cuts the other way. Cf. U.S. v. Raich, 549 U.S. at 29 n.38 (“California’s decision (made 34 years after the Controlled Substances Act] was enacted) to [legalize medical marijuana] cannot retroactively divest Congress of its authority under the Commerce Clause.”); The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1279, 1283-84 (2010).

The fact that marriage is special, and of particular state concern? Well, ok. But that is only to say that the word “marriage,” as used in state law, connotes a special relationship. It hardly follows that Congress is either required or forbidden to use the same word, or to have it denote the same idea. Congress could forbid selling a kilo of “marriage” in interstate commerce and then define “marriage,” for purposes of this statute, to mean cocaine; this would be an odd use of language, but it would hardly exceed Congress’s Commerce Clause power or violate the Tenth Amendment.

Indeed, to this point, consider another provision of the Dictionary Act, 1 U.S.C. 2, defining the word “county” for purposes of federal law. One might have thought that defining its own subdivisions, like counties, was perhaps the single most fundamental reserved power of a state – more fundamental even than domestic relations. Cf. Coyle v. Smith (state has power to choose its capital city). Yet no one has ever suggested that Congress cannot define the word “county” for purposes of federal law.

In short, no legislature has a monopoly on any particular word in the English language, and no legislature may impose its definition on any other. If DOMA is unconstitutional, it is because this particular federal definition of “marriage” offends some substantive constitutional provision. But that has nothing to do with federalism.

One final note: Jonathan Adler reminds us that “federalism should be respected even when it cuts against conservative preferences,” and Randy makes the same point. About this, I emphatically agree. But the implication, it seems, is that Sasha and Ed Whelan and I are, perhaps, fair-weather federalists, abandoning our principles because they do not suit our preferred policy result in the DOMA case. For the record, I yield to no one in my steadfast defense of federalism. Moreover, I have no particular fondness for DOMA, and I have taken no position on the ultimate merits of the case. I have critiqued “the federalism brief” only because, with all due respect, I’m afraid that it is unsound.

For a more thorough and scholarly treatment of this topic, see Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2102-25 (2002).

On Thursday, Stanford law professor and former federal appellate judge Michael McConnell suggested the Supreme Court should avoid ruling directly on the constitutionality of same-sex marriage by denying Proposition 8′s supporters standing to defend the initiative’s constitutionality and holding that the Defense of Marriage Act exceeds the scope of federal power. NRO’s Ed Whelan, who has previously criticized the federalism arguments against DOMA, responded to McConnell’s arguments here and here. McConnell sent Whelan a reply, which Whelan has posted with his response here.

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 Friday’s WSJ, Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the Supreme Court should hold that Proposition 8 supporters lack standing to defend the ballot initiative in federal court and that the federal government lacks the power to define marriage.

the court need not base its decision in Windsor on the merits of the same-sex marriage question. 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 court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.

If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question.

By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage—a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer—and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation’s culture wars.

I’m skeptical either judgment could command a unanimous court, and am not yet convinced Prop. 8′s supporters lack standing, but certainly agree this would be a welcome approach for the Court to take (and certainly agree that the “leading argument” against DOMA is that it exceeds the scope of federal power).

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.

I’ll have the pleasure of participating in two debates on SSM this week at student Federalist Society chapters. One will be with Ryan Anderson tomorrow at the University of Nebraska Law School. The second will take place at Creighton University Law School on Tuesday.  Please say hi if you see me at either.

You can watch the  live feed now.  Happy Valentine’s Day!

You can watch it here now.  It’s the second of three readings of the proposed law allowing same-sex couples to wed.