Who’s Afraid of 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.

The federalism concerns raised by DOMA have to do with the power of Congress. It is Congress that chose in 1996 to exclude only same-sex couples married under state law from the otherwise capacious category of state law “marriages” recognized under federal law. It expressly did so in part to undercut potential state choices in favor of marriage equality. When that law is challenged as discriminating against gay couples, the fact that Congress has no general power to marry people is properly weighed in the balance when lawyers try to come up with substantial justifications for what Congress did. 

It is certainly reasonable to suggest that a law this broad, denying recognition of existing state marriages under more than 1,000 federal statutes, undermines the meaning and effect of marriage licenses States have issued to same-sex couples. In passing DOMA in 1996, Congress did not simply dictate the treatment of married couples for a specific federal program pursuant to a specific enumerated authority.  It is not a federal choice of law rule about which state’s marriage law applies for federal marital protections. Instead, it effectively deemed an entire class of married couples - same-sex couples - unmarried in the eyes of the federal government.  

As Justice Ginsburg put it at oral argument, DOMA creates two kinds of marriages in the same state – full marriages and “skim milk” marriages. 

By contrast, the question presented in the Hollingsworth v. Perry case and other cases challenging states’ refusal to marry same-sex couples has nothing to do with the allocation of power between Congress and state governments.  The question is whether states may, consistent with their non-discrimination obligations under the equal protection clause of the Fourteenth Amendment, continue to marry different-sex couples while refusing to marry same-sex couples.  It is just a “category error” to suggest that by emphasizing the primary control of states over marrying people vis a vis Congress, lawyers challenging DOMA and justices contemplating its invalidation are opening the door for other states to continue to discriminate in their marriage laws. 

Thus, as Ms. Greenhouse pointed out, there was no federalism issue raised when the Supreme Court held in Loving v. Virginia that states may no longer refuse to marry interracial couples – because the Fourteenth Amendment required an end to such discrimination. The same is true in cases challenging the denial of marriage equality for same-sex couples by individual states.  Those states may have a primary role over these issues that fences out the federal government from using federal statutes to interfere, but they can’t claim immunity from their obligation to obey the Fourteenth Amendment, or otherwise impede Congress from enforcing the Fourteenth Amendment if it chooses to do so. And nothing the Court may say about federalism in Windsor will create any such immunity. 

Whatever one’s political inclinations, it is not possible to find another example of federal legislation that comes anywhere close to DOMA. And that understanding leads to the last and perhaps most important lesson that federalism teaches in this case. When the federal government acts in a way that not only is unprecedented, but also violates some of the basic principles of federalism, courts enforcing the equal protection guarantee have good reason to search more carefully for the government's real motives. In this case, the only credible explanation for DOMA’s treatment of married gay people differently from other married people is because they are gay, not despite the fact that they are gay. And that, thankfully, is simply not sufficient constitutionally to save DOMA.