Archive | DOMA

DOMA and Definitions – A Final Comment

In his last post on the subject, Nick Rosenkranz concludes that “the mere fact of a federal definition, for purposes of federal law, does not violate principles of federalism.” On this we are entirely agreed. And if all Congress sought to do with Section 3 of DOMA was to define the semantic meaning of a word, there would be no problem. But that’s not all Congress sought to do. Further this is not a case in which we (or anyone else) is asking the Court to pour through legislative history to divine Congressional intent, as the true purpose of DOMA has never been contested.

The ultimate question in the DOMA litigation is whether Congress has a legitimate federal interest in having a particular definition of marriage that supports the traditional form, and whether this interest is sufficient to justify the differential treatment (and disregard of marriages recognized under state law) that DOMA produces. One might have a definition so that we can know what the words mean in federal statutes, and yet still not be able to defend them with the same interests that a state might assert (as I explained here). In order to strike down DOMA, the Court need not conclude that federal law must forever and always accept state law definitions. All it needs to do is recognize that defining marriage is a traditional function of the states, not the federal government, and, as a consequence, there is no federal interest sufficient to justify DOMA. […]

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The Exact Same Word May Mean Different Things For Purposes of State Law and Federal Law

Section 3 of the Defense of Marriage Act (DOMA) defines the word “marriage” for purposes of federal law. In a recent post, Randy argues that this provision must be unconstitutional, because otherwise one could be “married” under state law but not under federal law, or vice versa, and “that is crazy.”

With all due respect, this is not crazy. It is, in fact, an utterly commonplace feature of our federalism that the exact same word may mean different things for purposes of state law and federal law. Ed Whelan demonstrates that this is true of the word “marriage” itself, even without DOMA. Orin Kerr points out that it is actually true of Randy’s favorite example, the word “property,” even though property law is generally core state law. And I have pointed out that it is true of the entire Dictionary Act, including the word “county,” see 1 U.S.C. 2, even though one might have thought that defining subdivisions like counties was the single most fundamental state function.

I would just add that this is also true of literally hundreds of other words throughout the U.S. Code. Many, perhaps most, of the words in the U.S. Code also appear in some state statute. It is utterly unsurprising to find that many of these words mean different things in different statute books.

To be sure, Congress can, if it wishes, piggyback on state definitions. But the Court has never suggested that Congress is required to do so. In fact, the presumption traditionally runs the other way. See Jerome v. United States, 318 U.S. 101, 104 (1943) (“in the absence of a plain indication to the contrary, … Congress when it enacts a statute is not making the application of the federal act dependent on state law.”); cf. McCulloch v. Maryland, 17 […]

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Commentary on DOMA and Federalism

Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention.  Here’s a brief round-up of some recent commentary:

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Can the Federal Government Define “Property” For Purposes of Federal Law? – A Response to Orin

In a post below, Orin notes that many federal statutes define the meaning of the term “property,” even though property is generally defined under state law.  If this is so, Orin understandably wonders, how could there be a problem with Congress defining marriage for purposes of federal law in DOMA?

The short answer to Orin is that all of the examples he cites are fairly straightforward examples of Congress adopting definitions that do no more than help facilitate the implementation of a given federal program and all lie within the scope of federal authority. What matters is not whether Congress invokes a particular word — there is no list of “special words” immune from the feds — but what it is that Congress is actually doing. So,  the claim is not that any effort to define “property” for the purposes of a given federal law or program necessarily “undermin[es] the institution of property,” but that where Congress actually acts to “undermine the institution of property,” it cannot defend the constitutionality of such action by claiming that all it has done is adopt a simple definition.

None of us have disputed that Congress has the power to define terms where doing so is necessary and proper to carry into execution the federal government’s enumerated powers.  So, for example, our brief notes that federal immigration law contains an antifraud marriage provision at 8 U.S.C. § 1186a(b)(1)(A)(i).  Though this provision addresses marriage, it is not particularly problematic.  As we explain in our brief:

this provision limits resident-alien status to members of a “qualifying marriage,” which excludes marriages that were “entered into for the purpose of procuring an alien’s admission as an immigrant.” 8 U.S.C. § 1186a(b)(1)(A)(i). It is at least conceivable that, in particular situations, the national government could demonstrate a need

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Why Striking Down DOMA on Federalism Grounds Would not Lead to “Litigation Chaos”

In a recent op ed, Harvard Law Professor Noah Feldman argues that striking down the Defense of Marriage Act on federalism grounds – as advocated in an amicus brief I signed along with several other federalism scholars, including co-bloggers Jonathan Adler, Randy Barnett, and Dale Carpenter – would lead to “litigation chaos”:

[T]he problem with this gradual strategy envisioned by court observers and attributed to [Justice] Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation….

To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.

In the first, most optimistic scenario, one or several marriage-friendly states might allow anyone from any state to get married there, creating a Las Vegas-style business in same- sex marriage. Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out- of-state marriages, and deny them state-level marriage benefits.

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions — across all 50 states and 13 federal circuits. If this isn’t

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The “Pretext” Argument Against Section Three of the Defense of Marriage Act

In his most recent post, Randy responds to my critique (here and here) of the DOMA “federalism brief.”

He begins by conceding: “In most every conceivable case, there is no objection to any particular definition adopted by Congress for purposes of federal law. Most definitions can easily be shown to be both necessary and proper to an enumerated power.” This is absolutely correct.

But if that’s so, I asked: “what is it that makes DOMA different? The fact that it applies to 1100 statutes…?” And Randy answers: “Yes exactly. It was indiscriminately adopted to apply to all statutes regardless of whether the definition was a necessary or proper means of executing any one of them….”

But this is true of the entire Dictionary Act, all of which was “indiscriminately adopted to apply to” hundreds of federal statutes, enacted under all different heads of federal power. Do the proponents of the “federalism brief” believe (contra, e.g. Bill Eskridge, p.92) that the entire Dictionary Act is unconstitutional? If not, why not?

The remainder of Randy’s post argues that the title of DOMA proves that it was not motivated by the execution of an enumerated power, and that it is thus a “pretext” in the McCulloch sense. See McCulloch v. Maryland (“should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the [national] Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”)

This seems a very slender reed on which to hang the federalism argument. Is the title of the Act really the linchpin of the objection? Is this really the crucial distinction between DOMA and the […]

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Epstein on the Gay Marriage Cases

Richard Epstein has two recent pieces discussing the Hollingsworth and Windsor cases.  One for Hoover’s Defining Ideas, the other for Ricochet.  In these pieces he notes some of his doubts about the libertarian case against DOMA and Proposition 8, but also suggests that Justice Kennedy — if he is to be consistent with his prior opinions — should not have such reservations.

I am still uncertain of how I would come down in these two cases . . . . But my equivocation on the case should not slow down Justice Anthony Kennedy. If he wants to maintain his own definition of liberty consistently, the author of the Lawrence opinion has to go the whole nine yards and come down in favor of gay marriage. . . .

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The Wall Street Journal Editorial Page Rejects The Federalism Argument Against Section Three of the Defense of Marriage Act

The Wall Street Journal editorial page — always a steadfast friend of federalism — is nevertheless unconvinced by the “federalism brief” in the Defense of Marriage Act (DOMA) case. The editors write:

[L]iberals and some libertarians argue [that DOMA] is an offense to federalism. We disagree …. In the Constitution’s system of dual federal-state sovereignty, each coequal sovereign has the power to define marriage for its own sphere.

As I have explained, here and here, this is exactly right. […]

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Why Does Federalism Matter in an Equal Protection Case?

The question presented in United States v. Windsor is whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection. Why, then, are some of us talking about federalism? It’s a fair question.

In an equal protection case, courts are called upon to weigh the weight of the government’s asserted interest and evaluate whether the allegedly discriminatory policy is sufficiently related to that interest. So, for instance, under the rational basis test, a court considers whether the challenged policy is rationally related to a legitimate government interest; under intermediate scrutiny a court considers whether the challenged policy is substantially related to an important government interest; and so on. Under each test, courts must consider the nature and weight of the asserted governmental interest — and not just any interest will do. Animus or the naked desire to harm or oppress another group won’t do, nor will any other interest that is not properly pursued by the government — and that is where federalism comes in.

Because the federal government is a government of limited and enumerated powers, the range of interests it may assert in defense to an equal protection challenge is necessarily limited. It cannot assert just any governmental interest to sustain a policy, such as Section 3 of DOMA, because not all governmental interests are federal interests. Whether or not one believes the range of federal interests is limited to the objects of enumeration in the Constitution, there should be no doubt that the federal government, lacking a plenary police power, does not have recourse to the same range of potential interests as do state governments. And those interests that remain may only justify so much. Efficient administration of a federal program may suffice (at least under rational basis), but it’s […]

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Can Statutory Definitions Be Unconstitutional on Federalism Grounds?

In his latest post on the federalism argument against DOMA, my co-blogger Nick Rosenkranz suggests that there can be no federalism-based constitutional objection to a statute that “defines [a word] only for purposes of federal law.” According to Nick. such a definition can only be unconstitutional if it offends some substantive constraint on government power, such as the Equal Protection Clause, and that federalism concerns have “nothing” to do with it. Randy makes several points in response to Nick’s argument, as did I in a prior post. Here I just want to focus on the claim that it is impossible for Congress to define a word, for purposes of federal law, that could exceed the scope of federal power.

For starters, we agree that Congress may define terms in order to carry into execution the federal government’s enumerated powers. Where we disagree, apparently, is the extent to which this imposes a meaningful constraint on federal lawmaking and whether it is possible for Congress to adopt statutory definition that exceeds the scope of federal power. Yet not only is this possible, the Supreme Court has said as much in scrutinizing the definitions Congress and federal agencies have adopted for statutory terms.

Let’s take one of Nick’s examples: “It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft.” 33 U.S.C. 409. As Nick notes, in 1 U.S.C. 3 Congress elsewhere defined “vessel” for the purposes of this and other federal laws. There’s no problem here, but that’s because insofar as Congress has the authority to regulate vessels in navigable waters (under the Commerce Clause) and military vessels (under those clauses conferring authority over the military), it can […]

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There Is No Federalism Objection To Section Three of the Defense of Marriage Act

There has been a lot of commentary about the federalism argument against the Defense of Marriage Act (DOMA). Several of my co-conspirators signed on to the “federalism brief” in the DOMA case. I expressed serious doubts about the argument a few weeks ago (as did Sasha, and Ed Whelan over at National Review Online), and Jonathan Adler and Ernie Young responded. In deference to my co-conspirators, I thought I would leave the matter there. But now that George Will and Michael McConnell have taken to the editorial pages in support of the federalism argument (as Dale and Jonathan note), I feel obliged to explain in greater detail why I think this argument is unsound.

Once again, Section 3 of DOMA provides: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” The key point here is that this provision defines the word “marriage” only for purposes of federal law.

Indeed, Ernie Young, primary author of the federalism brief, concedes that “Congress can, of course, define terms where this is ‘necessary and proper’ for ‘carrying into execution’ its enumerated powers.” But he insists that DOMA’s definition of “marriage” is not necessary and proper. I confess that I do not understand this argument.

Imagine Congress has enacted only two statutes total. The first is an exercise of the Commerce Clause power. It provides: “It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner […]

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Whelan v. McConnell on Same-Sex Marriage

On Thursday, Stanford law professor and former federal appellate judge Michael McConnell suggested the Supreme Court should avoid ruling directly on the constitutionality of same-sex marriage by denying Proposition 8’s supporters standing to defend the initiative’s constitutionality and holding that the Defense of Marriage Act exceeds the scope of federal power. NRO’s Ed Whelan, who has previously criticized the federalism arguments against DOMA, responded to McConnell’s arguments here and here. McConnell sent Whelan a reply, which Whelan has posted with his response here. […]

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McConnell on the Same-Sex Marriage Cases

In Friday’s WSJ, Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the Supreme Court should hold that Proposition 8 supporters lack standing to defend the ballot initiative in federal court and that the federal government lacks the power to define marriage.

the court need not base its decision in Windsor on the merits of the same-sex marriage question. The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.

If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question.

By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage—a momentous step that some justices might be reluctant to take. It would leave the issue

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Some questions on the DOMA federalism theory

I’m also one of those who are skeptical of the federalism brief against DOMA. But I have a few questions, based on perusing the recent posts here and elsewhere by Dale, Randy, Jonathan, Nick, and my former boss Ed. (I read the brief itself a while back, but declined to sign; forgive me if the answers to my questions are right there in the brief.)

1. Ed distinguishes three types of statutory schemes: (a) a statute attaching consequences to marriage, with a definitional section defining “marriage”, (b) a statute where the word “marriage” is simply replaced with its definition, and (c) a statute without a definition of marriage, but where “marriage” is defined in a separate statute. Would the federalism theory be fine with (b) but not with (a) and (c)? Or, based on the idea that Congress has no power to care about what’s a good marriage, would the theory would also invalidate (b)? What’s the dealio?

2. If the problem is that Congress enacted DOMA for the purpose of furthering traditional marriage, does that mean I have to buy into purposivism or intentionalism to buy this theory?

3. What about all the statutes granting benefits to a spouse derivatively of the eligibility of a primary person, like Social Security (for purposes of survivorship), the immigration laws, etc.? The statute could have been written to apply to the actual eligible person: no Social Security benefits for widows, no special immigration treatment for the wife of an eligible person, etc. And yet they did write the statute to give special treatment to spouses that isn’t available for boyfriends/girlfriends, business partners, best friends, chess partners, etc. What was Congress’s power to do so, thus privileging the marital relationship over other kinds of relationships (even long-standing […]

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Debating DOMA and Federalism

As Dale noted here, several VC contributors joined a federalism scholars amicus brief in United States v. Windsor arguing that Section 3 of the Defense of Marriage Act transgresses the limitations on federal power.  Our brief questions whether it is proper for the federal government to seek to defend a traditional conception of marriage in response to state decisions to recognize same-sex marriage under state law.  The brief takes no position on the desirability of same-sex marriage, the constitutionality of California’s Proposition 8, or whether states are obligated to recognize same-sex marriages under the 14th Amendment.  (For what it’s worth, I personally support same-sex marriage and oppose Proposition 8 on policy grounds, but do not believe state recognition of same-sex marriage is constitutionally required and believe Proposition 8 is constitutional, even if subjected to intermediate scrutiny.  Time permitting, I’ll author additional posts explicating these latter points.)

The arguments in our brief have begun to prompt responses, most notably from our co-blogger Nick Rosenkranz and my NRO Bench Memos co-blogger, Ed Whelan.  Yesterday, Randy Barnett posted a reply by Duke law professor Ernie Young, the brief’s principal author.  I also responded on NRO’s Bench Memos.  Ed has since posted a surreply.

As I noted in my reply, Ed and Nick make the reasonable point that the federal government must have the authority to define terms for the purposes of federal law.   This argument is only goes so far.  Of course Congress may define terms in federal statutes, but it may not do so in such a way so as to exceed the scope of federal power or pursue ends not entrusted to the federal government and displace state authority.  So, for instance, Congress could not redefine “commerce” for purposes of federal law so as to exceed […]

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