Federalism

  • April 17, 2013
    Guest Post

    by Mary Bonauto and Paul Smith. Ms. Bonauto is the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders in Boston. She was lead counsel in the Goodridge Massachusetts marriage case in 2003. Mr. Smith practices law in Washington, D.C. and argued the landmark Lawrence v. Texas gay rights case in the Supreme Court in 2003.


    We are co-counsel in two of the lawsuits challenging the Defense of Marriage Act that are now awaiting the Supreme Court’s ruling in United States v. Windsor. We principally chose “DOMA” as a litigation target because it so clearly denies gay and lesbian married couples the equal protection of the law guaranteed by the Constitution -- treating those married couples, and only those couples,  as though they are single for purposes of all 1,100-plus federal laws that take marital status into account. Significantly though, DOMA also involves a decision by Congress to second-guess the choices made by individual states that have married same-sex couples. By defining “marriage,” for all federal purposes, as limited to heterosexual unions, the law vitiates the States’ determination that married same-sex couples are married for federal purposes. The ability to say who is married has been the virtually exclusive domain of the states -- not Congress -- and is bounded only by other constitutional guarantees of due process and equal protection.

    We have always felt that this limited federalism aspect of the DOMA litigation is also helpful on the equal protection challenge. In our briefs (as in Edie Windsor’s in the Supreme Court), the fact that states control marriage policy in this country is used to undercut the claimed justifications for discriminating based on sexual orientation that have been offered up by the law’s defenders.  Although neither we nor Windsor raised these claims, one state, the Commonwealth of Massachusetts, has its own pending case in which it argues that DOMA undermines state prerogatives to license marriages for same-sex couples as it does for others. A prominent amicus brief by conservative legal scholars filed in the Windsor case also sounded concerns that DOMA goes beyond defining marriage for federal purposes and interferes with state law. And at the Supreme Court arguments on March 27, Justice Kennedy and others asked questions suggesting they might agree that DOMA violates principles of federalism.

    But the prospect that the Court might give considerable weight to federalism in a decision invalidating DOMA has caused grave concerns among some progressive observers – most notably Linda Greenhouse in her recent column ominously named “Trojan Horse.” The primary concern she expressed was that a decision invalidating DOMA on federalism grounds would, by emphasizing the primacy of states in setting marriage policy, somehow immunize from constitutional challenge those states that have chosen not to extend marriage rights to same-sex couples. But this concern reflects a mixing of constitutional apples and oranges.

  • November 15, 2012

    by Jeremy Leaming

    Following on the victories for limited legalization of marijuana in Colorado and Washington, advocates for legalization are gearing up for more state action. Andrew Sullivan in a post, “The Legalization Tipping Point,” notes that lawmakers in Rhode Island, Maine, Massachusetts, and Vermont are contemplating legalization legislation.

    Legislators from Rhode Island and Maine during a teleconference today conducted by the Marijuana Policy Project discussed their plans to introduce measures that would decriminalize marijuana and allow the states to tax and regulate it “in a manner similar to alcohol.” The MPP statement about the call said lawmakers in Massachusetts and Vermont were planning on introducing similar legislation.

    In the MPP press announcement, Robert Capecchi, the group’s legislative analyst lauded last week’s victories, noting both ballot initiatives passed with about 55 percent in favor. He also declared, “We are passing the tipping point when it comes to this issue. Unfortunately, lawmakers have traditionally been behind public opinion when it comes to marijuana policy reform. With these thoughtful legislators in at least four states planning on introducing sensible proposals to remove criminal penalties and regulate marijuana in their states, it’s clear that ending marijuana prohibition is gaining momentum.”

    A string of states – 17 – and the District of Columbia already have laws permitting varying uses of marijuana for medicinal purposes. Denver’s medical marijuana industry, even with the efforts by the federal government to impede it, has become robust. But we still do not know how the Department of Justice will respond to the measures approved in Colo. and Wash.

  • November 14, 2012
    Guest Post

    By Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, Sturm College of Law, University of Denver


    With the passage of marijuana legalization initiatives in Washington and Colorado, the long-simmering cold war between state and federal marijuana policy threatens to break out into open hostilities. While eighteen states plus the District of Columbia now permit marijuana for medical purposes, only Washington and Colorado have taken the bolder step of both repealing entirely their marijuana prohibitions for small amounts of the drug and requiring their state legislatures to begin regulating a retail, recreational marijuana industry by the end of 2013.

    Everything now depends on the response of the federal government. Notwithstanding changing policy in the states, marijuana remains on the DEA’s list of Schedule I narcotics, those drugs whose manufacture and sale are strictly prohibited. Thus, every transaction in every medical marijuana state throughout the country constitutes a federal crime. The Justice Department has grudgingly accepted the medical marijuana industry thus far; while there have been some federal raids on these businesses, they have generally been permitted to operate, notwithstanding their open flouting of the Controlled Substances Act (CSA).

    In 2010, when the state of California considered Proposition 19 which would have legalized marijuana for recreational purposes U.S. Attorney General Eric Holder issued voters in that state a strong warning. He made clear that the federal government would “vigorously enforce” the provisions of the CSA in the state if voters passed the Proposition. After having an early lead in polls, the measure eventually lost.

  • August 24, 2012
    Guest Post

    By Gabriel J. Chin and Marc L. Miller. Chin is Professor of Law at the University of California, Davis, School of Law. Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. They authored “The Unconstitutionality of State Regulation of Immigration through Criminal Law,” which recently appeared in the Duke Law Journal and addresses these arguments, and others, in more detail. The views expressed are solely those of the authors.


    On August 20, the other shoe dropped. After Arizona’s systematic defeat in Arizona v. United States, rejecting the most important parts of SB1070, the question became how courts would treat the many other state laws on the books dealing with immigrants. If a trio of cases from the Eleventh Circuit is any indication, federal courts will read Arizona v. United States as severely limiting state authority to legislate in the area of immigration.

    The three opinions were written by the same panel, and largely affirmed or expanded injunctions issued by district courts. Two cases involved Alabama’s HB56, Hispanic Interest Coalition of Alabama v. Governor of Alabama and United States v. Governor of Alabama. The third case, Georgia Latino Alliance for Human Rights v. Governor of Georgia, examined Georgia’s HB 87. The laws had some of the same features as SB1070, and the Eleventh Circuit necessarily treated those as did the Supreme Court. The decisions allowed Georgia and Alabama to investigate the immigration status of people stopped or arrested, but, like the Supreme Court, left open the possibility of as-applied challenges based on racial profiling or unlawful seizures. The Eleventh Circuit also struck down Alabama’s prohibitions on undocumented people seeking work or failing to carry immigration documents, just as the Supreme Court had.

  • July 9, 2012
    Guest Post

    By Mae Kuykendall, Professor of Law, Michigan State University, and Director of the Legal E-Marriage Project


    A federal court in Manhattan has entered a summary judgment in favor of Edith Windsor, a widow assessed an estate tax of $363,053 on her spousal inheritance. This sum was assessed because the federal government, pursuant to Section 3 of the Defense of Marriage Act (“DOMA”), deems her Canada-solemnized same-sex marriage nonexistent.

    This holding is the latest defeat for Congress’s 1996 handiwork. With the request by the Obama administration for certiorari to the First Circuit DOMA holding and to a Ninth Circuit DOMA scheduled for September oral argument, and with Prop 8 litigation potentially headed for high court review, Windsor nicely differentiates among the distinctive issues affecting same-sex marriage.

    In Windsor, a brief for intervenors for the U.S. House of Representatives argued that Congress could rationally conclude there is a federal interest in impeding “an unprecedented redefinition of our foundational social institution.” Judge Barbara Jones politely demolished this portentous pronouncement as support for federal law.

    The judge demonstrates that all-or-nothing arguments about same-sex marriage conflate separate questions. The intuition that a loud NO! is final masks the need for nuance. 

    With same-sex marriage, there are several obviously distinctive questions. First, must states affirmatively authorize same-sex marriage by issuing marriage licenses to couples? Second, may the federal government treat as null for federal law a state-created legal status affecting family relations? Third, to what extent are states required to afford recognition to legal statuses created outside the state by sister states? Fourth, what determines whether a state has recognized a given marriage, at a given time?  With differing questions, different factors are at work, and they demand multiple answers.