Private: States Seek Ability to Continue Discriminating Against Gay Families

By Steve Sanders, an appellate lawyer and adjunct faculty member at the University of Michigan Law School

Thirteen states have filed an amicus brief in Perry v. Schwarzenegger, the case in which the U.S. Court of Appeals for the Ninth Circuit will review a district court decision that struck down California's same-sex marriage ban. The brief-submitted by the attorneys general of Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, Utah, Virginia, and Wyoming-argues that it is gravely important that states be allowed to continue privileging "traditional" marriage and denying equality to same-sex couples. One of the brief's lead counsel is Virginia attorney general Ken Cuccinelli (pictured), a darling of social conservatives and the Tea Party movement.

The brief purports to offer an argument about marriage federalism-that every state should be able to carry out its own ideas without interference either from Washington or pesky federal judges. But as I'll explain, these attorneys general -- call them the Cuccinelli 13 -- don't really believe their own argument. They just want their states to be able to keep discriminating against gays and lesbians.

As you might expect from a group of mostly red states (11 of the 13 AGs are Republicans), the brief rehashes familiar social-conservative themes: marriage is about procreation; children are better off in heterosexual homes; it's a slippery slope from gay marriage to legalized polygamy and incest; the "traditional" understanding of marriage should be constitutionally dispositive.

What's interesting, though, is that the brief frames these arguments within a sweeping claim that states have "sovereign primacy over marriage." "Primary state authority over family law," they write, "is confirmed by definite limitations on federal power" and is a "bedrock principle of federalism."

Taking aim at the judge who invalidated California's Proposition 8, the Cuccinelli 13 insist that "federal judicial power threatens to undermine state determinations of marital or parental status," and that the district court's "fiat" (a silly characterization of a closely reasoned 136-page opinion) "exceeded its judicial authority." But this is an obtuse argument. The brief attempts to conflate the "domestic relations exception"-a judge-made abstention doctrine that deprives federal courts of jurisdiction over intrafamily disputes like divorce or child custody-with the power of federal courts to review the constitutionality of state laws. Faulty arguments aside, the Cuccinelli 13's real point is that if states want to keep discriminating against same-sex couples, federal courts just need to butt out; they have no right to question majoritarian ideas - what the AGs call "the acquired cultural wisdom of citizens" - about marriage.

There are some ironies in the Cuccinelli 13's defense of traditional marriage, as well as their invocation of children. One of the brief's lead states, Indiana, was a notorious national divorce haven in the mid-19th century, offering non-residents a quick and easy way out of the marriages their own states, in their "sovereign primacy," had created. More recently, another lead state, Louisiana, has argued in the Fifth Circuit, in a case called Adar v. Smith that it may refuse to recognize the parent-child relationship of a Louisiana-born child and the same-sex couple who adopted him in a New York court. Louisiana's position would effectively render the child an orphan in the eyes of its law. But such is the price Louisiana says must be paid for its right to denigrate the legal relationships that other states, in their own "sovereign primacy" over family law, have created.

The Cuccinelli 13 purport to honor the classic federalism principle that "individual states" should be allowed "to experiment with novel social or economic arrangements" like same-sex marriage on their own terms. But in fact, none of these states actually believes in that sort of marriage federalism. We know this because their own laws do not respect the sovereignty of other states --- Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont, along with the District of Columbia -- that currently license same-sex marriages.

A defining characteristic of American family law is that a marriage created in one state (assuming the couple was domiciled there at the time) will presumptively be recognized in all states. This common-law rule provides for certainty in legal relationships; prevents the casual evasion of marital obligations; and respects the rights of the state where the marriage was celebrated. In other words, while creating a marriage is a core incident of state sovereignty, recognizing a sister state's marriage is simply the price of living in a federal system. Any other understanding would create an absurd regime where states could effectively nullify each others' marriages, and couples' marital status could change every time they crossed a state line. While you expect to have to apply for a new driver's license when you move from one state to another, who expects to apply for a new marriage license? (As I have argued elsewhere, it is time for courts to recognize a liberty interest under the Due Process Clause that would prevent states from undoing marriages they simply don't like.) In a highly mobile society like ours, a Des Moines same-sex couple who can count on their marriage being recognized only so long as they never leave Iowa does not have what most Americans would recognize as a marriage.

Yet that is the world the Cuccinelli 13 believe we should live in. All their states refuse to give effect to the relationships of legally married same-sex couples who relocate from someplace else. You've come into our territory, they say, invoking the antiquated "public policy exception" to the rule of marriage comity, and so we get to redetermine whether you're actually married. For the Cuccinelli 13, "sovereign primacy" over marriage means not only insisting upon their own "traditional" ideas about marriage, but also denying respect to marriages that were created by other sovereigns with different ideas.

While the Ninth Circuit prepares to deal with Perry, less attention is being paid to a case on its way to the First Circuit: Massachusetts v. Health and Human Services, a challenge by the Bay State's attorney general, Martha Coakley, to the federal Defense of Marriage Act (DOMA). While the Cuccinelli 13 intone about their "sovereign primacy" as a way to fend off judges who might stop them from discriminating against gay people, the Massachusetts case really is about who gets to define marriage, the states or the federal government.

A little background: DOMA, passed in 1996, creates a federal definition of "marriage" (one man, one woman) and forbids recognition of same-sex marriages for any federal purpose. As a consequence, it penalizes states that honor such marriages. Massachusetts loses millions of dollars in federal funding for programs ranging from Medicaid to veterans' cemeteries because, while its state agencies recognize same-sex spouses, the federal government will not.

In July the Massachusetts district court ruled that DOMA violates the Tenth Amendment, which says "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." With DOMA, the court said, the federal government had arrogated to itself a power reserved to the states: the power to say who is married and who isn't. DOMA thus overturns the "historically entrenched tradition of federal reliance on state marital status determinations."

Much of the district court's opinion reads like the Cuccinelli 13's brief in Perry. "[M]arital status determinations," it says, "are an attribute of state sovereignty," and "the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution."

The Cuccinelli 13 should, of course, enthusiastically embrace this holding. Were they to be principled, they would at this moment be preparing an amicus brief in support of their sister state Massachusetts as it attempts to ward off DOMA's illegitimate exercise of federal power over marriage. After all, they say in their Perry brief that "even the broadest conception" of the federal government's powers "forbids any possibility that Congress could regulate marriage." Moreover, the Tenth Amendment has traditionally been a favorite of legal conservatives. Cuccinelli has made himself a hero of political right by waging a high-profile lawsuit against the Affordable Care Act, the Obama administration's landmark health care reform law, arguing that its individual mandate violates -- you guessed it -- the Tenth Amendment.

Of course, the Cuccinelli 13 are unlikely to link arms with Massachusetts. Given the choice between a consistent position in favor of states' rights over marriage, or a consistent position against recognition of same-sex marriages by any level of government, it is predictable that they will choose the latter. Their real concern is the primacy of their definition of marriage. Just as the "acquired cultural wisdom of citizens" is a poetic euphemism for discrimination, the "sovereign primacy" of states is just another way of saying that federal courts adjudicating claims to rights and equality should buzz off.

[image via kcvaag]

Constitutional Interpretation, Equality and Liberty, LGBTQ Equality