More on the Constitutionality of DOMA
Okay, let me have another go-round.
I’m making basically four points:
1. DOMA should be repealed. The Federal Government should recognize same-sex marriages wherever they are duly authorized by the states. For that matter, New York, where I live and vote, should duly authorize same-sex marriages. That’s my view on the “substance.”
2. I don’t buy the 10th Amendment argument that DOMA is unconstitutional.
3. I’m skeptical in general of arguments that such and such law is unconstitutional because it lacks a “rational basis” but I’m open to being enlightened as to how such a claim isn’t just an insult to the legislature.
4. I think DOMA would clearly fail “intermediate scrutiny” under equal protection; I think there’s a good argument that sexual orientation deserves such scrutiny; and DOMA would seem to be as good an opportunity as any to put the question to judicial test.
I think point 1 is pretty clear. So let me elaborate on the other points.
DOMA basically doesn’t recognize same-sex marriages at the Federal level, and therefore disqualifies such couples from the Federal benefits that accrue to married couples. But it doesn’t impinge in any way on Massachusetts’ recognition of their marriage nor on any benefits or burdens Massachusetts chooses to confer. So I don’t see how it impinges on the sovereign right of the Commonwealth to define marriage as it sees fit.
And I can imagine circumstances where it would be affirmatively necessary for the Feds to define marriage. For example: suppose Louisiana enacted a reform whereby two different forms of marriage were authorized in the state: “covenant” marriage” and “let the good times roll marriage.” Covenant marriage would not permit divorce; LTGTR marriage could be dissolved at will unilaterally by either party. Which of these contracts is “marriage” for Federal purposes? The Feds would have to decide, wouldn’t they?
DOMA doesn’t forbid anyone from getting married. From the perspective of a gay couple married in Massachusetts, it discriminates between different marriages on the basis of sexual orientation (or, alternatively, the mix of genders in the marriage). Whether such discrimination is acceptable is an equal-protection question, not a question of states’ rights.
Whether this is acceptable or not hinges on the level of scrutiny applied and the justification given for the discrimination. If the level of scrutiny applied is “rational basis” review, then all the government needs to provide is a plausible rationale related to a legitimate government interest – if that. The government doesn’t have to be right either factually or morally. The desire for national policy to reflect the national consensus is a rational argument for DOMA. The desire not to set a precedent without lengthy consideration is a rational argument for DOMA.
Let me quote from FCC vs. Beach Communications, Inc:http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=508&invol=307:
In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if any reasonably conceivable state of facts could provide a rational basis for the classification . . . On rational basis review, a statutory classification such as the one at issue comes before the Court bearing a strong presumption of validity, and those attacking its rationality have the burden to negate every conceivable basis that might support it. Since a legislature need not articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the legislature was actually motivated by the conceived reason for the challenged distinction. Legislative choice is not subject to courtroom factfinding, and may be based on rational speculation unsupported by evidence or empirical data. Adherence to these restraints on judicial review preserves to the legislative branch its rightful independence and its ability to function.
If there is a fundamental right to marry that applies to same-sex couples – and that’s an argument that can be made – then not only is DOMA unconstitutional but there is a Federally-guaranteed right to same-sex marriage, and all the states that have prohibited same-sex marriage necessarily must recognize same-sex marriage whether they will or no. That’s the precedent from Loving vs. Virginia. That’s not the argument at issue here, though.
If the issue is whether the Federal Government can discriminate between two couples, both married in Massachusetts, one a man and a woman and the other two women, such that the first couple receives the benefits of a married couple and the other does not, then the question isn’t infringing constitutional rights (is there a constitutional right to spousal benefits?) but whether the statute classifies along suspect lines and, if not, whether it is rational. As noted above, if there is no suspect classification, then the court is really in no position to second-guess the rationality of the legislature – rather, the plaintiff has the huge burden of effectively proving that there is no plausible rationale of any kind.
The court could, of course, move the goal posts for rational basis review, and begin to demand an actual rationale, and then scrutinize it. This would be a precedent for a huge amount of litigation claiming that legislation – most of it related to economic regulation – is irrational because the legislature’s claims about the intended effect of the laws lack empirical validity. I can’t imagine anyone wants to go there; I certainly don’t.
More likely, a court could effectively imply that discrimination on the basis of sexual orientation is irrational as such. But this is just a less-honest way of treating sexual orientation as a suspect classification. It may be “rational” to keep gay men and lesbians out of the military out of fear that they’ll suffer abuse and negatively impact morale – sounds like a “rational” argument to me. But that’s not enough to justify such discrimination if gay men and lesbians fall into a suspect classification; if they do, then the interest needs to be compelling and discrimination needs to be the only practical way to achieve that interest (and, as a matter of historical practice, the Court is very strongly inclined to defer to the military specifically on those sorts of questions). Similarly, it may be “rational” for the government to reserve benefits for straight married couples – but if discrimination against gay couples is presumptively suspect, then I don’t see how it passes muster.
The honest way to attack DOMA’s constitutionality is to say that gays and lesbians should be considered a suspect classification. I don’t know what the odds are that this Court would hold that way, and I don’t have any real insight on what the consequences would be if they don’t. If you’re interested in that question, check out this post by Jack Balkin outlining the possible go-forward scenarios.
The honest way . . . maybe. But not the simplest (legally or logically).
— KVS · Jul 14, 05:38 PM · #
Noah, how does IRS ruling PLR-149319-09 effect your analysis above?
PDF here: http://www.irs.gov/pub/irs-wd/1021048.pdf
— Erik Vanderhoff · Jul 14, 07:44 PM · #
Erik: mind telling me the issue? I’m afraid I’m not going to get to reading the ruling in full.
— Noah Millman · Jul 14, 08:20 PM · #
Nobody asked me, but that IRS ruling begins its analysis by affirming the long-standing federal practice of following state property law.
Etc. That’s a very narrow issue. I don’t imagine it changes Noah’s position much re the constitutionality of DOMA.
Noah, you might have read this already, but Andrew Koppelman’s Defending the Sex Discrimination Argument for Gay and Lesbian Rights is pretty good. There’s an even easier way to proceed than Koppelman’s, but he was the first to defend the position so he gets most of the credit.
— Kristoffer V. Sargent · Jul 14, 08:36 PM · #
Oops, left out the issue in the IRS ruling: because CA law treats domestic partnerships and marriages identical in terms of property disposition, must the IRS treat the earnings and credits of domestic partners the same way it does the earnings and credits of regular marriages. The answer was yes, given the longstanding practice mentioned above.
— Kristoffer V. Sargent · Jul 14, 08:48 PM · #
Noah,
I seem to recall you writing of your opposition to same-sex marriages in the past. Any chance of a post (or just a note) discussing how you came to change your mind on that score?
— David Polansky · Jul 15, 01:02 AM · #
I’m bored. Just finished a brief, have some coffee to burn off before bed, so I’m going to spit this into the ether.
A law sorts the population into two groups, White (W) and Unwhite (U). Benefits accrue to WU pairings (marriages). WW and UU pairings receive no benefits. WU pairings are preferred because mixing leads to healthier outcomes; not mixing leads to higher rates of defects in the offspring. ‘Heathy offspring’ is a rational goal of the State.
You’re thrown into 2010 in its legal entirety. What is your best strategy?
The worst strategy is to equate the unions, to say that WU is no different than WW or UU. The second worst strategy is to shame your way into a change in the law by arguing that U’s who like other U’s and W’s who like other W’s should be considered a suspect class. This is true even if it works.
The best strategy is to focus on what the law does: it discriminates based on race. It doesn’t necessarily discriminate against a particular race (assume that W’s and U’s are equally represented in the population). Rather, the law uses a racial classification system to define which pairings are preferred — which get benefits, which get penalized.
A quick caveat. A benefit is a dressed up penalty. See Schelling (1984); McCaffery and Baron (2004, 2006, 2006b).
The logical effect of equality is substitution. The ideal of political and social equality is that all laws should trade lower-level markers like W(White) and U(Unwhite) and replace them with the generic, all inclusive designation I(Individual); that is, the law should be formally blind to discriminating characteristics. All subsets of ‘I’ should be interchangeable within the logic of the law. Random substitutions — put a “W” here, a “U” there — should have no effect on the law’s outcome, its rationale, or its validity.
A law which rejects I=I — a law not amenable to free and random substitution of “I” subsets — is by definition a discriminatory law. It discriminates based on a variable, or it discriminates against a variable, or it does both. Given the founding principle of equality and its codification by the 14th Amendment, a law which destroys the beautiful symmetry of I=I is facially discordant with the deepest values of this nation. As such this law is immediately suspicious. On review, abnormal scrutiny is necessary.
Now go back to 2010. Race-based classifications are abnormally scrutinized. The law in question breaks the symmetry; I≠I. It does this by discriminating based on racial characteristics. When individual “I’s” pair off, some of these pairings are preferred and some of them are penalized. Benefits and penalties are distributed according to a shallow discriminatory algorithm. The algorithm checks the W-ness or the U-ness of each pair member, tallies the result.
Why even refer to the moral worth of WW and UU pairs? Why refer to homoattractees at all, except to show discriminatory intent? The law is facially discriminatory: it breaks an ostensibly equal humanity into its component parts and rewards or penalizes accordingly. I≠I. That my hypothetical does this by race places it into the “strict scrutiny” camp. Because DOMA does this by sex, by the standards we have been given DOMA clearly deserves/requires intermediate scrutiny. This at least.
Yada, yada, carry on and be well.
— KVS · Jul 15, 04:13 AM · #
I seem to recall you writing of your opposition to same-sex marriages in the past. Any chance of a post (or just a note) discussing how you came to change your mind on that score?
Seconded. Particularly since I believe you mentioned you had something written up relatively recently that never actually got posted.
— Brett · Jul 15, 05:01 AM · #
A law which rejects I=I — a law not amenable to free and random substitution of “I” subsets — is by definition a discriminatory law. It discriminates based on a variable, or it discriminates against a variable, or it does both. Given the founding principle of equality and its codification by the 14th Amendment, a law which destroys the beautiful symmetry of I=I is facially discordant with the deepest values of this nation. As such this law is immediately suspicious. On review, abnormal scrutiny is necessary.
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