“Does Congress have authority under Section 5 of the Fourteenth Amendment to enact DOMEA?”

This is the time of the law school semester when law students confront sometimes fanciful hypotheticals on final examinations. For various reasons, I’ve already told my (mostly) first-year students in Constitutional Law that I will not be giving them an essay question on Section 5 of the Fourteenth Amendment. But in thinking about the constitutionality of state-law marriage definitions that require a man and a woman for civil marriage, I came up with a question about a hypothetical piece of legislation that seems like it could fit on a final examination this year. Since I won’t be putting it on an examination, I thought I’d post it and see if readers have analyses that they would like to share, whether on another blog or in the comments here.

Suppose that Congress passes and President Obama signs new federal legislation, The Defense of Marriage Equality Act (“DOMEA”). The operative provisions of DOMEA state: “(1) No state shall deny civil marriage to any person because he or she has chosen to marry a person of the same sex. (2) No state shall refuse to recognize a civil marriage that was performed in another state, and remains valid in the state of celebration, on the ground that the married couple are persons of the same sex.”

Congress’s premise in passing DOMEA is that federal legislation is needed to enforce the Fourteenth Amendment’s Due Process Clause, which protects the right to marry for all people, and the Fourteenth Amendment’s Equal Protection Clause, which prohibits classifications that burden fundamental rights and that discriminate against disfavored classes. A “Findings” section of DOMEA states, among other things, “Congress finds that state laws that limit marriage to one man and one woman violate the Fourteenth Amendment because such laws deny gays and lesbians the constitutionally protected right to marry the partner of their choosing.” This congressional finding is based on the Supreme Court’s decisions in Windsor, Lawrence, and Romer, as well as the string of post-Windsor lower-court decisions that have (thus far unanimously) held opposite-sex-only marriage definitions unconstitutional under the Fourteenth Amendment.

Does Congress have authority under Section 5 of the Fourteenth Amendment to enact DOMEA? Provide a brief analysis setting forth the strongest arguments and counter-arguments in support of your conclusion.

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“As singular a failure as I’ve seen in the history of the Supreme Court”? McGinnis on Windsor, not Shelby County

[Update 1: With commendable quickness, NPR has posted a correction to the web version of the story discussed below. Even the new version would benefit from additional qualification in contrasting the reaction between “political conservatives” and “academic and judicial conservatives,” but no point in nitpicking now.]

[Update 2: Nina Totenberg has posted a classy apology and explanation for her listeners/readers. She explains that the misattribution of the quotation resulted from a mix-up in her notes on the excellent (but lengthy) panel. My memory of the quotation and context may have been more vivid than other listeners’ because the lawyer sitting next to me (whom I do not know) nodded and muttered agreement when Professor McGinnis explained that Windsor‘s failure to articulate a rule of decision can be seen in the fact that the separate dissents of Chief Justice Roberts and Justice Scalia both provided plausible but vastly different accounts of the import of the majority’s holding.)]

Even Totenberg nods.

Nina Totenberg’s end-of-the-term review (HT: How Appealing) includes an extended rip on the Supreme Court’s 5-4 Voting Rights Act decision in Shelby County v. Holder, highlighting criticism by “academic and judicial conservatives.” The quoted critics are Charles Fried, Michael McConnell, and John McGinnis.

One of the most stinging quotations is attributed to McGinnis. Totenberg’s story characterizes McGinnis as arguing that “the court’s conservatives let their own policy disagreements with Congress trump the clear meaning of the Constitution and the post Civil War amendments.” She then quotes McGinnis’s comments at a recent judicial conference: “I’m sorry to say I think this opinion was as singular a failure as I’ve seen in the history of the Supreme Court.”

The quotation comes from McGinnis’s comments on the Supreme Court review panel at the Fourth Circuit Judicial Conference. McGinnis did utter those words, but he was not talking about Shelby County. Instead, he was talking about Justice Kennedy’s opinion for the Court in United States v. Windsor. That’s a big difference.

A video clip of McGinnis’s remarks is available at http://www.c-spanvideo.org/clip/4457472. McGinnis’s comments are from roughly the 1:40 to 3:30 marks. The “singular failure” quotation is near the conclusion of those comments. McGinnis argues that Windsor is troubling “as a matter of craft” because it fails the “basic requirement of the rule of law . . . to articulate a rule of decision.”

McGinnis did comment on Shelby County during the same panel, but his comments were not nearly as critical as those on Windsor. In fact, McGinnis described the decision in rather sympathetic terms. He appealed to McCulloch‘s “pretext” limitation on congressional power and contended that the preclearance requirement decreased the competitiveness of elections by resulting in the “packing” of districts and reducing the ability of states to experiment with districting. The video of the full panel is available at http://www.c-spanvideo.org/program/313594-1. McGinnis’s comments on Shelby County begin around 19:45.

In the NPR story as it aired, the McGinnis clip on Windsor follows directly after the NPR story’s misquotation of his views on Shelby County. It is difficult to understand how this kind of mistake was not only made initially but also not caught in fact-checking.

Totenberg’s other critical quotations about Shelby County seem correct given their content and context. But while it may be true that “two out of three ain’t bad” in some circumstances, this is not one of them.

The idea that “academic and judicial conservatives” think Shelby County is wrong has already begun to spread. Rick Hasen’s influential Election Law Blog, for example, posts an extended excerpt from the Totenberg story under the post title, “Conservatives Criticize Shelby County Reasoning.”

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Another argument against the anti-DOMA “federalism brief”

A federalism-focused anti-DOMA brief has now been the subject of a flurry of posts on Volokh Conspiracy and NRO’s Bench Memos. (Jonathan Adler’s recent post includes direct links to the posts.) These posts line up Jonathan Adler, Randy Barnett, Dale Carpenter, and Ernie Young against Nick Rosenkranz and Ed Whelan.

In my view, Rosenkranz and Whelan have the better of the exchange. But there is still an important element missing from the discussion, for both sides of this debate assume that the Supreme Court should inquire whether Congress had power to pass the law containing DOMA § 3’s definitions. That’s the wrong question. The Court in Windsor has no good reason to consider the constitutionality of DOMA’s definitions except insofar as that definition is plugged into the estate tax. And when the Court considers the constitutionality of DOMA’s definitions of “marriage” and “spouse” in connection with the estate tax, the “necessary and proper” analysis has a straightforward answer.

DOMA § 3 has the kind of legal effect that the federal courts have business dealing with in Windsor only by virtue of that provision’s application in conjunction with the estate tax. By its terms, DOMA § 3 is nothing more than a directive about how to determine “the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.” The “Act of Congress” in this case is codified at 26 U.S.C. 2056, a spousal exemption from the federal estate tax. Ms. Windsor would have avoided paying a significant amount of money in estate taxes if she had qualified under federal law as Ms. Spyer’s “spouse.” Because Ms. Windsor did not qualify as a “spouse” for purposes of the federal estate tax, she had to pay.

Ms. Windsor’s challenge to the limited reach of the estate tax’s spousal exemption takes the form of a refund action. The “judicial review” question is whether a court may give legal effect to DOMA’s definitions in the course of deciding this refund action.

The federalism-based anti-DOMA brief answers this question “no” on the grounds that a court may not give legal effect to DOMA’s definitions in any case–the provision as a whole (DOMA § 3, but not all of DOMA) exceeds Congress’s powers. The federalism-based anti-DOMA brief attacks DOMA’s definitions on their own and in conjunction with every other provision of federal law in which DOMA’s definitions of “marriage” and of “spouse” might apply. But the brief does not attack DOMA’s definitions insofar as they are plugged into the estate tax exemption at issue in the case.

The brief argues that “[a] federal definition of marriage that indiscriminately applies to more than 1100 federal statutes and programs can be ‘plainly adapted’ to none of them.” But that is not right. DOMA’s round peg fits into all the round holes, and there are many of them in federal law.

If the spousal exemption in the estate tax is a round hole, such that DOMA’s definitions are “plainly adapted” to it, that is the end of the no-power argument for this case. Congress has power to tax and concomitant power to define the scope of the federal estate tax in a way that declines to exempt Ms. Windsor and others similarly situated.

To escape this move, the anti-DOMA federalism briefers might try to argue that the court should entertain a kind of overbreadth challenge to DOMA: Even though DOMA’s definitions are plainly adapted to the estate tax, the definitional provision is invalid in its entirety because it is not plainly adapted to some other areas of federal law (like, for example, bribery rules). This argument would probably fail on its own terms, as DOMA’s definitional provisions have a plainly legitimate sweep. But the more fundamental problem is to explain why this form of challenge should be entertained at all.

My analysis is closest to the portion of Whelan’s in which he writes that “section 3 of DOMA is merely definitional and … section 3 plugs into other congressional enactments. If those other enactments are within Congress’s power, then it is plainly within Congress’s power to define the terms it uses in those enactments.” And it is similar to Rosenkranz’s, which describes DOMA § 3 as a “cut-and-paste function”:

DOMA Sec 3, like all definitional provisions, is essentially a cut-and-paste function. Where you see X, you should read Y. Obviously Congress could simply have erased X throughout the US Code and replaced it with Y. Likewise, presumably, Congress could have added an “X shall mean Y” definitional section at the end of every single statute. And so, I can’t see any objection to a global definition at the beginning of the U.S. Code.

But one objection raised by the anti-DOMA federalism brief is to the use of a “global definition.” Because it is global, the argument goes, it is not “plainly adapted” to any particular exercise of an enumerated power. My analysis provides a response to this form-based objection.

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Enforce but give up?

Marty Lederman asserts that there is ample historical precedent for what he describes as the Obama Administration’s “enforce-but-do-not-defend practice” with respect to DOMA § 3. But the label seems inapt. The Obama Administration is not simply refusing to defend. It is actively opposing a motion to dismiss. This appears consistent with various administrations’ positions in other cases. To describe the practice as a simple refusal to defend, however, significantly understates both the practical and legal import of what the administration is doing.

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DOMA straddle in N.D. Cal.

Marty Lederman points to a DOJ brief opposing the constitutionality of DOMA § 3 recently filed in the Northern District of California. The DOJ argues for heightened scrutiny while conceding that “binding authority of this circuit [i.e., the Ninth Circuit] holds that rational basis review applies to sexual orientation classifications.” (p. vi) Moreover, the DOJ brief states that, if rational basis is the appropriate standard, “as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard.”

The brief is more political than legal. A district court simply has no authority to ignore binding circuit precedent. Honest-broker lawyering would have resulted in a different brief — acquiescing in dismissal while explaining that the federal executive would seek to change binding circuit precedent. Such an approach would parallel the executive’s own approach to enforcement. Apparently, the executive believes that its role constrains it to continue enforcing a law that  it believes to be unconstitutional. Yet the executive invites an inferior court in a co-equal branch of the federal government to ignore its own role.

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