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 the bounds of the federal Commerce power or redefine “property” so as to exclude property recognized under state law from constitutional protections.  (Indeed, as federal courts have held, Congress is even limited in its ability to define federally created interests as something other than “property” where doing so could eviscerate the Constitution’s Due Process guarantees.)  So asserting that Congress has the power to define terms for purposes of federal law is not, in itself, a sufficient answer to our claim.  At bottom, the question our brief raises is not whether Congress is generally free to define terms in federal statutes — it is — but whether it is permissible for Congress to do so here for the purpose of advancing a a traditional definition of marriage when the federal government lacks any independent federal interest in such matters.

To close, I’ll repeat something I wrote on NRO:  In McCulloch v. Maryland, Chief Justice John Marshall noted that “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the 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.”  There is little question that the federal Defense of Marriage Act is not about the administration of federal programs, but about defending a traditional definition of marriage.  There is also little question that such matters were not entrusted to the federal government.  Federalism is often congenial to conservative policy goals, but such is not guaranteed, and federalism should be respected even when it cuts against conservative preferences.

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