Is DOMA Unconstitutional?
I’m going to associate myself with Jack Balkin in saying “no” – at least not based on the arguments advanced in the recent cases out of Massachusetts.
DOMA is a bad law. I’d like to see it repealed. I think gay and lesbian civil rights groups should press President Obama really hard to declare that he agrees, as I believe he has in the past. I think it would be instructive for there to be a debate and a vote on repeal in the Senate even if the vote lost.
But if I understand the two recent decisions, they don’t hold water. The tenth amendment argument amounts to the bald assertion that the subject of marriage is exclusively a state matter. But, as Balkin points out, if that’s true then all the Federal laws that relate to marriage are at least problematic – including those benefits that the plaintiffs are suing for access to. Moreover, since marriage is nowhere enumerated as reserved for the states, the decision, if upheld, would seem to open the gates to a flood of litigation to strike down the vast Federal edifice that does not clearly fit into one or more clearly enumerated Federal powers.
As for equal protection, Judge Tauro claims that the law violates a “rational basis” test. I’ve always been puzzled by the idea that any law can fail this test. After all, a variety of arguments have been advanced defending the traditional definition of marriage. They may be lousy arguments – I myself, having once entertained and even authored some of them, have come to the conclusion that they are wrong – but what does it mean to say that they are “irrational?” I suppose if someone said, “we should not permit gay marriage because it will lead to cooties” then one could point out that cooties don’t exist, unless you’re referring to their original meaning (lice) in which case, no, it won’t. But if the argument is “permitting gay marriage will ultimately undermine the norm of marriage among heterosexuals” – well, we obviously can’t definitively say it will or it won’t until the experiment is tried. And saying that this norm is not a legitimate government interest is not only bizarre but is clearly contradicted by the opinion, which accepts the legitimacy of discrimination based on marital status.
There is, however, an argument for striking down DOMA that would be perfectly consistent with precedent. And that is to claim that gays and lesbians are, indeed, a “suspect classification” subject to review under “strict scrutiny” which, in turn, would require narrow tailoring of the discrimination and a compelling state interest to justify it. (In Korematsu, which established the whole concept of strict scrutiny, the Court concluded that the removal and internment of American citizens of Japanese descent who lived on the Pacific Coast met this most stringent standard.)
The usual bases for concluding that strict scrutiny is appropriate are: the group in question has historically been subject to invidious discrimination; the group is an insular minority; the group possesses some immutable trait that is fundamental to their identity; and/or the group is somehow systematically disadvantaged in the political process.
Gays and lesbians clearly meet at least some of these criteria. Unquestionably they meet the first. They don’t clearly meet the second inasmuch as gays and lesbians are born into families everywhere, but gay and lesbian communities could be understood to be insular minorities; at any rate, the question is ambiguous. To a considerable extent they meet the third criterion. While the etiology of homosexuality is still very much unknown, the question of whether homosexuality is innate or chosen is no longer really subject to scientific debate. On the other hand, the trait is not uniform in its expression. There are certainly individuals who have no attraction to the opposite sex, and certainly individuals who have no attraction to the same sex, but there are also individuals in the middle – and then there are the variety of other sexual orientations lumped together under the expression “transgendered.” On yet the other hand, traditionally suspect categories like race and national origin are also potentially muddy, and the pretty straightforward category of sex (male vs. female) is not a suspect classification, and is subject to “intermediate scrutiny” – whatever that is. On balance, I think there is a strong argument that they meet the third criterion. Finally, the fourth criterion probably doesn’t apply except in a sense that can readily be collapsed into the first criterion; resident aliens, for example, are plainly disadvantaged in their access to the political process, as are children, but other than because they are the subject of animus and discrimination, I can’t see how gays and lesbians are.
How discrimination gets assessed is a bit peculiar. Discrimination based on religion has to run the gauntlet of passing “free exercise” muster, but for equal protection purposes is subject only to rational basis scrutiny. But alienage is considered a suspect classification. Meanwhile, sex is subject to “intermediate scrutiny,” basically because the courts have been reluctant to conclude that the manifest biological differences between men and women have no consequences that the law needs to be cognizant of.
While remaining cognizant of the somewhat perplexing nature of the decision of what gets strict scrutiny and what gets less-than-strict scrutiny, it seems to me that the argument that gays and lesbians deserve greater than mere rational basis scrutiny is very strong. And if DOMA were subject even to intermediate scrutiny, I can’t imagine that it would pass constitutional muster. I’m trying to imagine a similar Federal regulation that discriminated against women that would – probably something to do with discrimination by the military in combat situations or some such, and even then I doubt it.
Reluctance to make this move has everything to do with reluctance to “force” significant social change on society. But that’s exactly what the Equal Protection Clause has historically been used for by the courts: to force social change. If we’re reluctant to go that route, we should be honest that what we really want to do is roll back the scope of Equal Protection as such, and roll it back for distinctions based on race, national origin, etc. But that suppressed desire is not a good reason to deny the facts about what invidious discrimination against gays and lesbians actually is.
“But if the argument is “permitting gay marriage will ultimately undermine the norm of marriage among heterosexuals” – well, we obviously can’t definitively say it will or it won’t until the experiment is tried.”
HELLO!!!! Gay marriage has been legal in several countries for years now. And yes, even in 5 of our states. Last time I checked Bridezillas was still on TV, celebrities continue to treat marriage like a revolving door, and straight people still have yet to be forced to gay-marry each other in any jurisdiction. I suspect that’s why you included “ultimately” in your qualifier about the rationality of the argument. It’s like science deniers who claim that we can’t really prove that evolution exists, even though it is clearer than the nose on their primate faces. Well, how long does the “experiment” (and don’t even get me started on your homophobic notion that my relationship is an “experiment”) have to go on for you to believe the hypothesis is ridiculous? The notion that gay marriage will undermine hetero marriage isn’t just irrational, it is absurd. And we have the data from jurisdictions where it is legal to prove it.
— gaylib · Jul 9, 04:52 PM · #
There is a different discussion pertaining to whether gay marriage is a civil right, bringing in the apparatus of federal enforcement of civil rights, or is a subject matter best left to the purview of the states under the 10th amendment. Not all legal issues are federal. The states in agreeing to the Constitution did not include all matters for federal control. Obvious areas of federal control such as immigration, commerce, an armed force, are clearly not areas for the states to deal with. But other areas, such as inheritance, permission or prohibition of bigamy, age of majority, criminal law, are not generally areas for the federal government to deal with. You do not apply strict scrutiny to whether or not a state permits bigamy or at what age should statutory rape apply. These are solely matters for state determination. Moreover, each state has its own constitution and state judges to interpret those constitutions. Until Bush v. Gore, elections were assumed to be state matters for state determination. There is a lot more force to argue that Arizona’s new anti-immigration law will fall because immigration is solely the purview of the federal government than the argument that the federal government can tell states how to construe what marriage consists of. Ultimately, the US Supreme Court will decide the issue.
— LDM · Jul 9, 05:04 PM · #
“But that’s exactly what the Equal Protection Clause has historically been used for by the courts: to force social change.”
That’s a bit of an overstatement. The Equal Protection Clause has historically been used by national majorities to force change on local majorities. It has not historically been used, unlike some other Constitutional provisions, to force enlightened change on national majorities. (It has also been used to address isolated injustices, of course, but that use does not result in social change.)
— y81 · Jul 9, 05:43 PM · #
This doesn’t really go to the issue of constitutionality. Something can be constitutional and still implicate radical effects on the status quo. (In theory, at least, and with about a million caveats; but still.)
On rationality —-
In this particular legal context we’re talking about instrumental rationality, that is, proper categorical goals, and optimizing the fulfillment of these goals (epistemic rationality comes in the back door, if at all). It goes on from there. The answers in many cases might be underdetermined, but it’s not that hard to come up with a few “primary goods” for a republican State qua superorganism. You can do this scientifically, even. It would give this lowest level of scrutiny some teeth.
— Kristoffer V. Sargent · Jul 9, 05:53 PM · #
That said, I agree with you about DOMA and discrimination. Particularly since homosexuality is almost certainly, at least in part, physiological.
The Fed’s position seems to be that the State should be blind to gender unless a rational interest is at stake, or, alternatively, that DOMA does not discriminate based on sex classification. Both are absurd.
The first question we must ask is, what does DOMA do in a functional sense. The answer: it sorts society into two groups, men and women, and uses this classification scheme to limit an individual’s right to marry another individual (“man and woman” is the operative and sole restriction in DOMA). In other words, whether you can marry your partner depends entirely on how the state has classified you, and how the state has classified your partner.
This point is inarguable: DOMA is a law that sorts society by sex and thereafter uses this criterion to limit an individual’s fundamental right See CLEVELAND BOARD OF EDUCATION v. LAFLEUR, 414 U.S. 632 (1974) (”[The Supreme] Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment”). This point is also inarguable: a law that classifies by gender is a law that classifies by gender. See CRAIG v. BOREN, 429 U.S. 190 (1976) (“classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives”). As Noah points out, sex-based classification schemes are subject to intermediate scrutiny, at least.
However, it’s arguable that DOMA deserves the highest level of scrutiny. DOMA is, at core, a sex-based sorter which uses the result of the classification scheme to limit an individual’s fundamental right to choose which other individual to marry. Strict scrutiny, methinks.
— Kristoffer V. Sargent · Jul 9, 06:44 PM · #
What DOMA opponents have failed to do is distinguish between 1) what a law’s discrimination is based on, and 2)who a law ends up discriminating against. Without a doubt, DOMA discriminates based on sex. Because we have tons of precedent concerning laws which discriminate based on sex (mandating intermediate scrutiny) and little to no precedent finding homosexuals to be a ‘suspect class’, the former is where the opponents should have focused, even though DOMA’s effect (its ulterior purpose) is to discriminate against homosexuals.
That’s just smart strategy: DOMA elevates a biological fact into a legal status; my legal status is “MAN”, hers is “WOMAN”; this is obvious sex-based discrimination.
That’s three in a row. Please don’t ban me.
— Kristoffer V. Sargent · Jul 9, 07:24 PM · #
So if Congress has been historically absent from a field of law, you’re saying it’s facially unconstitutional for Congress to move into and regulate that field. I’m on your side here, politically, but that’s dead wrong. If Congress is acting within the scope of its powers, it can let the children play for hundreds of years and still retain the ability to push them out of the way whenever it wants. It’s called preemption.
— Kristoffer V. Sargent · Jul 9, 08:58 PM · #
Everyone’s said pretty much what I’d say. I’ll just say that I’m not a fan of the way state’s rights positions are interpreted as a 10th amendment argument. It isn’t states that need to seek solace in the tenth amendment, it’s the Federal government that must provide context for why they can limit something the states are doing. The tenth amendment wouldn’t need to exist for this to be true, it exists as nothing more than a truism. That truism being that a government is limited by it’s constitution. And for all the slippery slope things I hear, not necessarily from here but other arguments against the ruling, it isn’t something grand like the commerce clause that’s in dispute here. The tenth amendment isn’t a power unto itself (this is the concept i’m trying to convey) the only relevance this case has is to the full faith and credit clause
I’d go further in that the DOMA also violates the spirit of the full faith and credit clause. Surely if the full faith and credit clause has any meaning… one of those is having one state recognize another’s marriage no matter what. But that’s not really a legal objection, just a common sense one.
— Console · Jul 9, 10:19 PM · #
Preemption applies only when the federal government already has an area that is exclusively federal. It can’t push children away from playing just because it wants to on the basis of preemption. Having a national military, regulating commerce internationally, deciding who may or may not be a citizen are areas of federal preemption. Sometimes companies attempt to use the doctrine of federal preemption to protect themselves from state liability (as a drug manufacturer attempted to do recently in trying to avoid millions in liability for failing to warn adequately of the danger of intravenous insertion of an anti-nausea medication, resulting in amputation) and fail to satisfy the US Supreme Court that the federal okay of warnings in the package insert preempts the state doctrine of liability. And sometimes the Supreme Court preempts state regulation of what would seem to be a state area i.e. contraception (Griswold v. Connecticut). Like a lot of legal doctrine, cases go both ways. But it would certainly seem that Congress attempted to impose its view of who can be married in this country and receive federal benefits in DOMA, and Massachusetts blinked.
— LDM · Jul 11, 12:09 AM · #
Fair enough, Chet, though I doubt that’s why Congress has been historically silent on the definition of marriage. Most likely the social substrate never allowed the issue to develop until recently.
But you see what I’m saying, right. If Congress has the power to regulate marriage, whether it has done so yet is quite beside the point. It seemed from your comment that you were putting all the emphasis on mere historical absence, when Tauro’s decision is subtler than that: not that it’s never been the place of the federal government to do X, therefore it can’t now, but rather because defining marriage is a quintessential task of the State and therefore reserved to the States by the 10th Amendment.
LDM, agreed the Supremacy Clause can never be the basis of Congress’s power to pass a law. That would result in an absurdity. Disagree with your narrow description of preemption. But that’s all I got for now, since I only brought up preemption to rebut the overly-broad point I thought Chet was making, which he wasn’t, so I shan’t have/won’t anymore.
— Kristoffer V. Sargent · Jul 12, 04:00 AM · #
Sometimes companies attempt to use the doctrine of federal preemption to protect themselves from state liability (as a drug manufacturer attempted to do recently in trying to avoid millions in liability for failing to warn adequately of the danger of intravenous insertion of an anti-nausea medication
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