Private: Federalism and Same-Sex Marriage in Windsor v. United States: Defusing the Power of NO!

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.

Judge Jones first disposed of a claim that a 1972 Supreme Court dismissal, Baker v. Nelson, was binding precedent, and that its NO! demolishes any equal protection DOMA challenge. In Baker, the Supreme Court affirmed the Minnesota Supreme Court’s rejection of a right to marry under the law of Minnesota.

Judges Jones responded that Baker’s leaving intact a state’s denying a state right to marry does not govern the federal government’s treating a state legal status as nonexistent. Without a rights-based compulsion, New York could host a valid marriage.

Former Solicitor General Paul Clement, for BLAG, next argued that during the relevant tax year (2009), New York law did not recognize same-sex marriage. Hence, as a 2009 New York resident who had married in Canada, he argued, Windsor was not married.  Here, Clement appealed to a historic NO! in state law.

The judge responded that the executive officers of New York had input into the legal standing of marriages in New York. The legislature’s NO! answer to authorizing Windsor’s marriage was not the whole story. New York could refuse to marry same-sex couples and welcome them home as lawfully married couples.   

Judge Jones next applied federalist and equality reasoning to claims of a federal interest in regulating same-sex marriages. For equality, she applied rational basis review. Despite deference in such review to a legislative body, there remains a judicial mission to discern a logical link between a possible rational interest and the means to achieve it. Judge Jones found each purported purpose lacked a connection to how Section 3 works, was remote and speculative, or was not legitimate.

Judge Jones also examined the fit of federalism with Section 3 of DOMA. She emphasized that states have had “the freedom to experiment with areas where they have had the primary control by virtue of history and expertise.” BLAG’s argument that DOMA was needed to maintain consistency in the federal benefits afforded same-sex couples had no basis in federalism. 

For the pending marriage cases, constitutional principles can override state marriage law. Prominently, the Supreme Court ruled in Loving v. Virginia that Virginia anti-miscegenation law was unconstitutional under the Fourteenth Amendment. Scrutinizing a recognition refusal, the Court ended racial marriage law in its entirety.

Today, the California Proposition 8 litigation and DOMA are positioned for Supreme Court consideration. The Proposition 8 case directly poses the licensing issue, but, unnoticed, California law presents the recognition question. Out-of-state marriages become civil unions in California with California marriage rights but without portability. 

The convergence of the separate marriage questions in current litigation could allow the Court to weigh differing interests for differing legal effects. Respecting the domain of marriage law, the Court could find a structural reason to leave the states’ role primary for authorizing marriages. At the same time, the Court can conclude states’ destruction of marriages is no better supported than Section 3’s treatment of valid state marriages.

The Supreme Court has the institutional resources to reconcile state prerogative, federal interests, and individual rights and avoid one single Yes or No. It would be a sound path.

Civil rights, Constitutional Interpretation, Equality and Liberty, LGBTQ Equality, Separation of Powers and Federalism, Supreme Court