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Thursday, March 28, 2013

Could DOMA Really Be Struck Down on Pure Federalism Grounds?

I'm happy to see that there seem to be at least five votes for striking down DOMA.  I'm surprised, though, by the possibility that Justice Kennedy's fifth vote might be based on a pure federalism rationale.  The clearest indication in that direction was Justice Kennedy's question to Solicitor General Verrilli: "You are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with.  And we are asking is it valid otherwise.  What is the federal interest in enacting this statute and is it a valid federal interest assuming, before we get to the equal protection analysis?"

Even Verrilli--who wants DOMA to be struck down--couldn't argue that there was a pure federalism problem with DOMA.  Nor could Windsor's own attorney, Roberta Kaplan.  After all, as the First Circuit explained in rejecting this identical argument last year, "Congress surely has an interest in who counts as married.  The statutes and programs that section 3 [of DOMA] covers are federal regimes such as social security, the Internal Revenue Code for federal workers; and their benefit structure requires deciding who is married to whom.  That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so."  Massachusetts v. United States HHS, 682 F.3d 1, 12 (2012).  Of course, this decision came a few months before the Supreme Court's healthcare decision (NFIB v. Sebelius), which struck down the Medicaid expansion on Tenth Amendment/Spending Clause grounds.  But I can't see how that decision, which focused on the particularly coercive nature of the Medicaid expansion (withdrawing ALL Medicaid funding from states unless they agreed to expand their coverage), affects this case.

That's not to say that the states' longstanding primacy in regulating marriage is irrelevant here.  It definitely plays into whether there is a rational basis for DOMA, once you move into the Equal Protection analysis.  But I think the Equal Protection clause has to be the laboring oar here, and I will be surprised if Justice Kennedy actually writes an opinion saying otherwise.




Posted by Emily Gold Waldman on March 28, 2013 at 10:23 AM | Permalink


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It is more than a little ironic that the conventional wisdom is that the strongest argument here is based on a provision, the Equal Protection Clause, that by its very terms applies only to the States. The right to define marriage fits much more comfortably within the language of the Ninth Amendment as a right "retained by the people." But we ignore the Ninth Amendment, and we certainly ignore the fact that it is really a provision about federalism.

Posted by: Michael J.Z. Mannheimer | Mar 31, 2013 1:37:28 AM

I suspect that had the Court taken the First Circuit case instead of the Second Circuit one, respondents would have pressed harder on the federalism arguments. Massachusetts went all-in on that theory before the District Court and the First Circuit, and Judge Tauro accepted the arguments and wrote a strong section on federalism in the District Court opinion.

Posted by: Griff | Mar 28, 2013 12:17:29 PM

You may well know this, but since you note that the advocates and the First Circuit didn't accept the enumerated-powers challenge to DOMA, I thought it might be helpful to provide readers a link to the source of the arguments, which from from the "Federalism Scholars" amicus brief, by Randy Barnett, Ernie Young, and others: http://www.robbinsrussell.com/sites/default/files/appellate_pdf/US_v_Windsor_Amicus_Brief_March_2013.pdf

Posted by: William Baude | Mar 28, 2013 11:31:52 AM

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