In his column for today, George Will backs the federalism-based equal protection argument against Section 3 of the Defense of Marriage Act that Ernie Young and Lynn Baker, along with co-Conspirators Randy, Jonathan, Ilya, and I made in an amicus brief filed in United States v. Windsor.:
Conservatives who supported DOMA should, after 17 years’ reflection, want the act overturned because its purpose is constitutionally improper. Liberals who want the act struck down should be discomfited by the reason the court should give when doing this.
… Because approximately 1,100 federal laws pertain to marriage, DOMA’s defenders argue that Congress merely exercised its power to define a term used in many statutes. But before 1996, federal statutes functioned without this definition, which obviously was adopted for the “defense” of marriage against state policies involving a different definition. “Before DOMA,” an amicus brief submitted by a group of federalism scholars notes, “federal law took state law as it found it.”
The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. . . .
Ernest A. Young of the Duke Law School, the principal author of the federalism brief, says the operation of DOMA cannot help but burden states because “federal and state law are pervasively intertwined.” To understand the harm that could be done by an unlimited federal power to define the terms of domestic-relations law, Young recalls when a few states, venturing beyond the national consensus, began experimenting with no-fault divorce. Suppose, Young says, Congress passed a statute refusing recognition, for purposes of federal law, of any divorce where neither party made a showing of fault:
“The couple would continue to be treated as married for purposes of federal income tax, health care programs and veterans’ benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law.”
As the scholars’ brief says, DOMA “shatters two centuries of federal practice” by creating “a blanket federal marital status that exists independent of states’ family-status determinations.” Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. . . .
Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.
Oral argument in the case is March 27.