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 […]
Archive | DOMA
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 […]
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 […]
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, […]
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 […]
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, […]
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 […]
Whelan v. McConnell on Same-Sex Marriage
By Jonathan H. Adler on March 23, 2013 3:43 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
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 […]
McConnell on the Same-Sex Marriage Cases
By Jonathan H. Adler on March 21, 2013 10:40 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
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 […]
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 […]
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 […]
Congress Has Power To Define The Terms Of Its Own Statutes
Last week, Dale Carpenter blogged about a particular amicus brief filed in U.S. v. Windsor, the Defense of Marriage Act (DOMA) case. In this brief, Dale, as well as co-conspirators Jonathan Adler, Randy Barnett, and Ilya Somin, set forth a “federalism-based” argument against DOMA. With all due respect to my co-conspirators, I agree with Ed […]
“The Most Significant Cases These Nine Justices Have Ever Considered”
By Dale Carpenter on November 30, 2012 12:22 pm in DOMA, Gay Marriage, Gay Rights, Same-Sex Marriage, Sexual Orientation, Uncategorized
Tom Goldstein at SCOTUSBlog presents the matter succinctly: At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage. These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide. I have never before seen cases that I believed would be discussed […]
The Second Circuit’s DOMA Decision
By Dale Carpenter on October 22, 2012 5:44 pm in DOMA, Equal Protection, Federalist Society, Sexual Orientation
At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional. The post concludes with a thought on what direction the Supreme Court might take when it confronts the constitutionality of DOMA: Even if the Court is […]
First Circuit Unanimously Strikes Down DOMA Section 3
By Dale Carpenter on May 31, 2012 12:12 pm in DOMA, Equal Protection, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
The opinion is here. The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court applied “rational basis with bite” scrutiny based on the arguments that the exclusion (1) denied important federal rights and benefits to a small class of married couples, and […]