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 DOMA should be repealed.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:

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.