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The New Federalism Attack on DOMA: Does the Supreme Court Really Care About States' Rights?
For almost 20 years, one of the pivotal debates on the Supreme Court has been the role of states' rights in limiting the power of the federal government. In cases ranging from nuclear waste disposal, the possession of handguns in school zones, and violence against women, the conservatives on the Court have argued that Congress cannot assert its power to regulate because doing so would encroach on "state sovereignty." According to the conservatives, areas of "traditional state concern" are protected by the 10th Amendment to the Constitution.
The contours of the 10th Amendment limitation have never been clear, mostly because the 10th Amendment itself is not clear. (It says that whatever powers the federal government does not have are left to the people or to states; it punts on what those powers actually are.) But one thing has been clear in the opinions of the conservatives on the Court: that family law -- marriage, divorce, child custody -- is an area of traditional state concern. In both the handgun case (United States v. Lopez) and the violence against women case (United States v. Morrision), then-Chief Justice Rehnquist cited the federal regulation of family law as one of a parade of horribles that would arise if federal power got out of hand.
Soon we'll find out if the conservatives really believe it.
Earlier this week, the Commonwealth of Massachusetts filed suit against the United States, claiming that the federal Defense of Marriage Act violates the right of the Commonwealth to define marriage for its citizens. It's the kind of thing that makes me proud to call Massachusetts home.
The target of the suit is the part of DOMA, Section 3, that establishes a federal definition of marriage as being between one man and one woman. (Massachusetts is not challenging Section 2 of DOMA, which protects the ability of one state to refuse to recognize a gay marriage solemnized in another.)
According to the suit, DOMA "interferes with the Commonwealth's exclusive authority to determine and regulate the marital status of its citizens," overturning two hundred years of federal deference to state definitions of marriage. Because Massachusetts recognizes same-sex marriages, DOMA costs the state millions of dollars a year, since the federal government refuses to pay its share of Medicaid costs for same-sex partners. DOMA also prohibits Massachusetts from burying same-sex spouses in veterans' cemeteries, even though Massachusetts owns the land and operates the cemeteries. The suit alleges that DOMA essentially "commandeers" the Commonwealth and its employees to be "agents of the federal government's regulatory scheme and ... discriminatory federal policy."
The brilliant, sweet irony of the suit is that it is based expressly on the 10th Amendment. The complaint alleges: "Section 3 of DOMA violates the Tenth Amendment, exceeds Congress's Article I powers, and runs afoul of the Constitution's principles of federalism."
The 10th Amendment has been used almost exclusively by those who want to limit the federal government's power to protect our environment, regulate firearms, punish hate criminals, and the like. And it's been a powerful rhetorical tool. But now, the 10th Amendment is being trotted out to fight against federally mandated discrimination in an area of traditional state concern. If the Court has been honest about family law being out of bounds for the federal government to regulate, then it should be an easy case.
It should be an easy case for an additional reason. In the 1995 handgun case, always-the-swing-vote Justice Anthony Kennedy explained his dedication to states' rights by referencing Justice Louis Brandeis's famous aphorism that states can serve as "laboratories" of democracy, trying "novel social and economic experiments without risk to the rest of the country." To Kennedy, the handgun statute needed to be struck down because it "forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise."
This same rationale works perfectly as a reason to question DOMA. In Massachusetts, the "experiment" of gay marriage has been a success. (We have the second lowest divorce rate in the country). Our laboratory has worked, and it has shown the way for an increasing number of states to provide equality for their own citizens.
Let's hope the federal courts protect the laboratory.
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This is a brilliant strategy. Arguing States' Rights in favor of marriage equality wouldn't have crossed my mind. The conservative "injustices" will damn the basis of their own bigotry either way they rule. DOMA is goin' down quicker than the Titanic with this argument.
Very erudite comments and great leadership by Kent.. I am a Canadian and same sex marriages have been legal here for some years I believe under our equivalent to your "equal protection clause". Same sex marriage is not an issue here and is not a threat to oppo sex marraiges. Question? Are Canadian SSM's recognized in law in the US by either states or the Fed?
Not trying to start a fight but it is ironic that one of the very cases cited in the DOJ brief that has flipped people out is going to win the case for your community. I just think, you know, Karma, it exists.
J
At this point, I don't really care what argument is used to help argue for repeal of DOMA. I just hope congress gets it done in the next 3.5 years
PlaceboStudman this is in the courts, not congress. .
The Irony! It almost hurts.
The SCOTUS will make this disappear quite simply: They will choose not to review the issue, or they will declare that the "States Rights" of all the other 49 states will be abbrogated if the law is weakened by allowing Massachusetts to "secede" from the national law (and will) of the country.
The Tenth Ammendment was not enacted as a tool to propagate purile, abnormal interests.
No case here.
And here the religioconservative attacks on human rights begins
But the state of Mass has determined SSM is not "abnormal".
No point here.
Well, here is the thing, granting cert is a vote, we have the votes now. It only takes four. So your argument that SCOTUS isn't going to review it, or hear the case is as ignorant the rest of your statement.
My family is not a " purile, abnormal interest".
I do not like my family called names. Who would?
It's hard to believe at least two of the justices wouldn't be interrested in this case. The Tenth Amendment was enacted to protect the Citizenry and the States from the tyranny the Federal govt. DOMA is just such tyranny. It clearly violates Article IV (full faith and credit), and amendments 5 (due process), 10 (states' rights, federal limitation), and 14 (due process and equal protection). I would also argue it violates the spirit of the First Amendment and probably the Ninth as well. It's blatantly anti-federalist, and as we are a republic more based on Rome than a democracy (in it's original since) like Athens, it advocates olchlocracy as in mob rule. This law is unjust and should be struck down.
Mr Greenfield,
let me ask another question if I may. Is it acceptable for an argument to be brought up using SCOTUS's own previous rulings? while this obviously isn't the case here (I dont think), Could a plaintiff bring a case that parallels the SCOTUS California medical marijuana case where several Ca counties were forced to abide by state law in distributing medical marijuana ID cards. I'm thinking in terms of, if, say, a particular county within a state that allowed SSM decided it was not going to allow SSM because of DOMA. Could this be used as a way to make DOMA irrelevant in the same way that the medical marijuana ruling in California basically has made federal marijuana laws somewhat irrelevant?
The supremes support states' rights only when it suits their purpose. In this case it doesn't serve their purpose.
Professor Greenfield...
I'm curious about something and perhaps you can clear this up for me. Is SCOTUS allowed to base a decision on something that is not included in a complaint? Specifically, as I've mentioned, it seems to me that since the federal government does not refuse to recognize a marriage where the bride is under 16, which in many states is illegal, it cannot refuse to recognize a SSM performed in Mass.
I don't see that included in the "Commonwealth" complaint. Can SCOTUS rule that way anyway or must it stick only to the points raised in the complaint?
Romulus-
I wouldn't put much stock in the complaint. Generally, a complaint just has to be a short and plain statement of the facts coupled with a request for relief that is designed primarily to give notice to a defendant more than act as a guideline for the Court. There's some exceptions to that (like a fraud lawsuit) but not many. That goes double for appellate courts, who in my experience are only interested in the pleadings when there is specific procedural question involved, like a motion to dismiss. I haven't read the complaint as you have, but I can't imagine that the argument you mentioned wouldn't be brought up.
The court will not rule on the issue you raise. It may come up in arguments, but a court's holding will not address a question that was not raised in the complaint.
See Kent Greenfield's Profile
Romulus,
There are many people who understand family and marriage law more than I do, but my understanding is that same as yours with regard to the notion that State A need not recognize a marriage from State B if the marriage is deemed to be contrary to public policy in State A. The examples you present of under-age marriages are the very ones on point. You're also right that for 200 years the federal government has, for the purposes of federal law, accepted the definition of marriage of the state in question. So for example -- absent DOMA, an under-age marriage in Louisiana would be deemed a marriage for IRS purposes, as would a gay marriage in MA (or ME, CT, NH, etc.). With DOMA, the Congress singled out one category of marriage -- same sex marriage -- as being off the table definitionally.
This difference might itself be a violation of the Equal Protection Clause or Due Process Clause of the Constitution, and the MA complaint does insinuate such a claim tangentially. It's certainly in there enough that the Court could decide it that way if it wanted. It also points out the strength of the 10th Amendment argument -- the feds let the states define marriage in a host of ways except when it looked like states were going to start allowing same sex couples marry.
My understanding is that they were going to stay away from Equal Protection and Due Process and go for a straight argument that the Fed doesn't have the authority to do what it is currently doing, namely enforcing the law. If you go Equal Protection you fall into the trap of strict scrutiny and enumerated suspect classes. While I think at some point a lawsuit has to be filed to include the LGBT community in the suspect class definition, this isn't the one. The beauty of this case is that it is simple. The federal government doesn't have the authority to dictate to states in matters of marriage, if they do, it is only for purposes of cross state recognition not legitimacy, further that all marriages approved by a state are federally recognized. It is a brilliant argument.
There's simply no compelling state interest. Good luck finding one here.
"State's rights" are not what you're talking about here, Kent. You're talking about something that millions of people do not agree with ... and perhaps, I don't know, maybe just-as-many do. But "state's rights" and the 10th Amendment are thousands of feet above-and-beyond the attempt to bestow legitimacy upon "boys will (ugh...) be boys."
Why all the focus on just the boys, seems to me that the girls want this more than the boys anyway, also, those millions people don't live in the state of Massachusetts which. Let the state of Massachusetts do what it wants to with respect to family rights, isn't that what conservatives have been calling for for the past 30 years?
State's rights is EXACTLY what we're talking about here. The fact of the matter is that it doesn't MATTER whether millions disagree with it or not. The state of Massachusetts has decided to allow gay marriage, which has been their right since there WAS a state of Massachusetts. Now the federal government steps in and says, "Do what you will, but we won't let anyone benefit from it at OUR level"
That's a violation of the state. When you ALSO add in that the federal government is costing the state money on medicare, medicaid, veterans benefits, etc.....
which is why it wins, in a walk. It is a brilliant argument, breathtaking in its simplicity. And, the court will be 5 - 4 our way when it gets there.
J
Oh how I wish I could deal with cold winters, I would move to Mass. in a heartbeat.
It's better there than it is in Chicago....
Our U.S. Supreme Court is loaded with Conservatives justices who use the 10th Amendment (state's rights argument) as a shield when it conveniently serves as a pathway to their desired disposition, usually to deny civil rights. This case will be interesting because it will smoke out their their hypocrisy should they fail to strike DOMA down as unconstitutional. It will highlight the hypocrisy to such a fine and easily understood degree that the masses will understand the truth behind such a decision. That their U.S. Supreme Court has been corrupted and no longer is trustworthy.
We liberals never seem to learn. We point out hypocracy of the right on a daily basis. 'Look there don't you see it?' And those on the right shrug their shoulders and sneer. They know they are hypocrits and they don't care. They get their way because liberals try to 'play fair' and feel guilty if we don't but righties just want to get their way and don't much care how.
So is this a test of whether the 'conservatives' on the court are hypocrits? Not really because we already know they are. They will just vote any way they like.
I agree, fpie.
Conservatives have repeatedly shown that they have NO credibility.
Yet, "Progessives" and Liberals have continued to listen, reason and argue as though they do.
Why?
THEY HAVE NO CREDIBILITY.
They lie, cheat and steal and do anything to achieve power.
They do it without shame or regret.
What's up Liberals?
I love this.
Couldn't agree more. This is even supported in polls. Americans are generally 10 points more supportive of the Federal Gov't recognizing marriages (support of federal recognition is the majority opinion presently) conducted in other states than they are of the concept of marriage equality in general.
Does everything always have to come down to partisan lines? I can think of numerous reasons why liberals would want less federal government intrusion in the way states run things. One obvious example you clearly don't want to bring up because it would take away from your "all conservatives are horrible two-faced people" argument is drug laws. All the liberals in california LOVE federal government intrusion.
Its not about whether the government runs things. Its not about whether the states run things. Its about the conservatives beating this dead horse to a pulp. We will simply see now whether these justices are men of principle or partisan hacks, using these arguments to further their personal political ideology .
I think you have that backwards. California liberals want the federal government to stay OUT of the marijuana issue within their state.
I'd like to see DOMA overturned. I don't think it will be, though. I don't see Section 3 as an attempt by the Federal government to regulate Family Law, specifically marriage. Remember that, in 1996 when this law was enacted, not a single State legalized SSM. Today, only six States do. Section 3 only recognized the reality that existed in 1996 and still exists to this day. Why should the Federal government recognize something that the majority of States do not?
While Commonwealth and your analysis present the best argument I've heard so far, they still do not persuade me that DOMA is unconstitutional. It wouldn't surprise me if SCOTUS is not persuaded either.
See Kent Greenfield's Profile
Romulus, Just to be clear: if MA is successful in its suit and section 3 of DOMA is ruled unconstitutional, it would not require other states to recognize same sex marriage. It would merely return the situation to the ex ante situation, where the federal government deferred to each state's definition of marriage for purposes of the interpretation of federal law within each state's borders. So the brilliance of MA's suit is that it is truly a "states' rights" argument rather than a call to recognize SSM throughout the country.
I am not the biggest fan of states' rights arguments in general (I was raised in the South where states' rights arguments were often placeholders for racial segregation), and I think 10th Amendment arguments are especially problematic. But this suit strikes me as an important one given current SCt precedent and doctrine.
Well your arguments almost persuade me. What does persuade me is a thought that occurred to me yesterday, which I believe would strengthen "Commonwealth". Let me run it by you to see what you think.
Looking up the minimum age requirements in order to marry in several states, I noticed that there are a number which allow a bride or groom under the age of 16 to marry with the consent of a parent and/or a court order. Other states don't allow marriage under the age of 16 for any reason. A marriage of a 14 year old, for example, in the state of Louisiana would not be recognized in the state of Illinois. Yet the Federal government would not deny any rights to the couple married in Louisiana.
It seems to me that denying Federal recognition and/or benefits to a SS couple married in Massachusettes but not denying those same benefits to a hetero couple where the bride is 14 who were married in Louisiana sets up an illegal double standard.
The point is that the federal government, until the DOMA, didn't determine which marriages they recognized or not. They simply said "The state says you're married? Then you're married!"
With the DOMA, the federal government said that they do not recognize same sex marriages, ONLY. They didn't say that the states could not recognize them, they said that if a state recognized it that they would not.
Well, yes, I think we all know this, L-R. What is your point?
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