“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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Dignity in Windsor, at the VC and in NJ

A few posts over at The Volokh Conspiracy at the end of last week raised some good questions about the basis for, and going-forward import of, the Supreme Court’s invalidation of DOMA in United States v. Windsor. In two posts (so far), Neomi Rao has probed the Windsor majority opinion’s use of “dignity,” while Dale Carpenter has provided a different take on the basis for Windsor. And Will Baude has written a post analyzing Friday’s New Jersey trial court ruling that New Jersey must extend the designation of “marriage” to its civil unions (which in New Jersey provide the same legal benefits under New Jersey law as marriage). These posts highlight the confusion that Windsor has spawned by its lack of a clear legal basis. (But see Ernest A. Young, United States v. Windsor and the Role of State Law in Defining Rights Claims, 99 Va. L. Rev. Online 39, 40 (2013) (“[T]he trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite  evident on the face of Justice Kennedy’s opinion.”).)

Some of this confusion stems, in my view, from Justice Kennedy’s description of state marriage law as conferring “dignity and status of immense import” upon those authorized to marry by state law. This understanding locates in the State much greater power than it possesses in a limited government. Properly understood, the State can undermine or promote human dignity through its laws (and in many other ways as well), but the State does not “confer” dignity. Once one assigns to the State a power that it is neither authorized nor suited to exercise, the boundaries that one then seeks to place around exercises of that power risk being arbitrary. (A similar dynamic comes into play when one assigns an attribute to the State that it does not, properly speaking, possess. Perhaps for this reason, the confusion surrounding Windsor resembles something of the confusion surrounding the Supreme Court’s use of “dignity” in its sovereign immunity jurisprudence.)

Whatever the sources of the confusion in Windsor, it is becoming increasingly clear that Windsor itself is a significant source of confusion for courts trying to figure out its legal import. This is apparent in last Friday’s ruling from New Jersey, Garden State Equality v. Dow. The court in Dow ruled that the equal protection guarantee of the New Jersey Constitution requires New Jersey to extend the designation of “marriage” to same-sex couples that previously were eligible for civil unions in the state. The court’s ruling rests on an interpretation and extension of the New Jersey Supreme Court’s 2006 decision in Lewis v. Harris. In that case, the New Jersey Supreme Court held that the same state-law rights and benefits provided to married couples in New Jersey must also be provided to same-sex couples eligible for domestic partnerships. The problem with the domestic partnership scheme at issue in that case was that domestic partners received fewer state-law rights and benefits than married couples in New Jersey. The court in Lewis held that there was no fundamental right to marry, but that the state constitution’s equal protection guarantee protected against discrimination in the form of fewer benefits for same-sex couples.

Following Lewis v. Harris, the New Jersey legislature enacted civil union legislation that provided same-sex couples in civil unions with identical state-law rights and benefits as enjoyed by married couples. This appears to have remedied the state-constitutional equal protection violation found in Lewis v. Harris. And that is where matters stood until Windsor.

After Windsor held the federal DOMA unconstitutional, various agencies of the federal government determined that same-sex couples who were married under state law would receive federal benefits as married couples under federal law. But these agencies did not treat state civil unions like marriages. Accordingly, same-sex couples in civil unions in New Jersey were not entitled to the same federal benefits as same-sex couples in marriages in other states that recognized same-sex marriage.

Friday’s ruling in Garden State Equality v. Dow holds that, in the wake of Windsor, New Jersey must allow same-sex couples to marry under New Jersey law in order to be entitled to the same federal-law rights and benefits as married couples, as required by the equal protection guarantee of the New Jersey Constitution as construed in Lewis v. Harris. Here is how the Dow court summarizes its reasoning:

Under the New Jersey Supreme Court’s opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples. The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples. The New Jersey legislature chose the latter option when it adopted the Civil Union Act. Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples. Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy. And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.

The court’s reasoning is confusing. If the Civil Union Act remedied the violation of New Jersey’s equal protection guarantee by ensuring identical state-law rights and benefits, then how does the new availability of federal-law rights and benefits to those who are married under federal law because married under state law affect the requirements of the equal protection guarantee of the New Jersey Constitution for couples who do not have a state-constitutional-right to marry? The court’s reasoning seems to conclude that the New Jersey Constitution requires access to the federal law benefits enjoyed by married same-sex couples in other states. But if the only reason that those couples are entitled to those federal-law benefits is because the state in which those couples were married has chosen to confer the dignity and status of marriage on those couples, then why should a different state’s constitutional equal protection guarantee require entitlement to federal-law benefits when that state has not chosen to confer the dignity and status of marriage on those couples?

Further, consider the following:

– “Under the New Jersey Supreme Court’s opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples.” But what “same rights and benefits”? Under state law? Federal law? Both? It is hard to believe that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

– “The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples.” All the same rights and benefits under state law? Under federal law? Both? Again, it is difficult to imagine that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

– “The New Jersey legislature chose the latter option when it adopted the Civil Union Act.” Since the Civil Union Act did not do anything to provide same-sex couples with the benefits of marriage under federal law, the New Jersey legislature chose a system in which same-sex couples could obtain all the same rights and benefits under state law that are available to opposite-sex married couples. So when the court says that Lewis required a choice between same-sex marriage and “a parallel structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples,” that parallel structure was measured by reference to state-law rights.

– “Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples.” But same-sex couples in civil unions in New Jersey were not previously entitled to all of the same rights and benefits under federal law as opposite-sex married couples in New Jersey. And that did not violate the New Jersey Constitution. Same-sex couples in civil unions in New Jersey were entitled to the same rights and benefits under state law before Windsor, and they remain entitled to the same rights and benefits under state law after Windsor.

– “Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.” WIndsor held unconstitutional the refusal of federal-law marriage benefits to those upon whom the state conferred the dignity and status of marriage. Same-sex couples in New Jersey are not couples upon whom the state has conferred the dignity and status of marriage. Wasn’t that the basic function of the Lewis court’s distinction between interpreting the New Jersey Constitution to require “marriage” on the one hand, versus interpreting the New Jersey Constitution to allow civil unions with identical rights and benefits as marriage under a different label, on the other?

[Cross-Posted at Mirror of Justice]

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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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Some JHW III for AMK and others re: same-sex marriage and indulging “the impulse to constitutionalize”

Times were different in 2006 when Judge Wilkinson wrote the Duke Law Journal piece excerpted below, Gay Rights and American Constitutionalism: What’s a Constitution For?

The California Supreme Court had not yet construed that State’s constitution to provide a right to same-sex marriage. But the citizens of Virginia were considering an amendment to that State’s constitution (an amendment that ultimately passed).

Judge Wilkinson argued against using a constitutional amendment as a ” preemptive strike against what some hypothetical court in some hypothetical jurisdiction might some day say.” He thought that “it would be astonishing for a court applying the rational basis scrutiny used in Romer and arguably in Lawrence to hold that a state lacks a rational basis to define marriage in its public policy, resting as that policy does on centuries of tradition and experience.” And  “[i]t would be particularly astonishing for courts to make such a pronouncement in the domestic relations sphere that lies at the heart of states’ competence.” Because “Lawrence and Romer are a far cry from this momentous step,” he argued, a constitutional amendment “would simply indulge the worst suspicions about the Supreme Court, preempting a decision that may never come.”

Some additional excerpts:

A tragedy is befalling American constitutional law. Both left and right in the gay rights struggle have indiscriminately indulged the impulse to constitutionalize.

* * *

Lawrence has been taken to task for overblown rhetoric, its overruling of precedent, its repudiation of traditional moral values, its reliance on unenumerated rights, and its resort to foreign law, most especially a decision of the European Court of Human Rights. Still, the result in Lawrence is eminently just and humane; the real flaw of the decision was to set the struggle over gay rights on a constitutional course. The Court’s lack of faith and trust in democracy was endemic. * * * [D]emocracy itself was on a decent and humane path, and the Court’s decision to preempt it with a problematic constitutional pronouncement was dangerously shortsighted.

* * *

It would be astonishing for a court applying the rational basis scrutiny used in Romer and arguably in Lawrence to hold that a state lacks a rational basis to define marriage in its public policy, resting as that policy does on centuries of tradition and experience. It would be particularly astonishing for courts to make such a pronouncement in the domestic relations sphere that lies at the heart of states’ competence.

* * *

The marriage amendment phenomenon then can only be viewed as a preemptive strike against what some hypothetical court in some hypothetical jurisdiction might some day say. This is an insufficient basis on which to amend foundational texts like state constitutions. A constitutional amendment is not by nature a preemptive device. It is instead an extraordinary mechanism–a tool of last resort properly reserved for situations which present no other choice. To amend a constitution preemptively, in anticipation of the proverbial rainy day, is, simply put, gratuitous. Such needless use of the amendment process is antithetical to the very essence of constitutional lawmaking and to the notion of a fundamental, guiding, and multigenerational charter. * * * Although a state with no other recourse is surely justified in responding to an activist constitutional interpretation, gratuitous amendments to our most basic documents of governance are hurtful and alienating in a way all their own.

* * *

It is the job of legislatures, not constitutions, to reflect evolving standards and to register change from whatever direction it may arrive. Statutes are more amenable to adjustment and modification than constitutional provisions are. And American constitutional tradition has always preserved for majorities the right to overrule courts on policy matters through statutory amendment rather than through the cumbersome process of constitutional change.

* * *

This difference between constitutional and statutory law bears quite directly on the question of gay rights. No constitution should ever assign its citizens pariah status. No constitution should relegate its citizens so symbolically and semipermanently to the shadows of national life. As a matter of statute, however, the balance changes. Statutes exist for the expression of values central to the imperative of social cohesion. Statutes legitimately articulate within limits a community’s aspirations for marriage, the raising of children, and the conduct of family life. It is in this difference between constitutional and statutory law that America strikes the balance between claims of personal rights and assertions of community prerogative.

* * *

[T]he chief casualty of the same-sex marriage debate has been the American constitutional tradition. Although electorates understandably are more concerned with results than with process, the Framers were concerned supremely with process, and that process has made possible our civility, self-governance, and greatness as a democratic nation. * * * It is not wrong for gay citizens to wish to share fully in the life of this country, to partake of its most basic and sacred institution, and to experience the intimacy, bonding, and devotion to another that only an institution such as marriage can bring. To embrace this view one need not believe that sexual infidelities will disappear, but only that many gay couples will make good on their vows and lead fuller, richer, and more productive lives as a result.

 That, however, is hardly the end of the matter. Marriage between male and female is more than a matter of biological complementarity–the union of the two has been thought through the ages more mystical and profound than the separate identities of each alone. Without strong family structures, there will be no stable and healthy social order, and alternative marriage structures may weaken the sanction of law and custom necessary for human families to flourish and children to grow. These are no small risks, and present trends are not often more sound than the cumulative wisdom of the centuries.

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? The dangers of doing otherwise are clear. When we  politicize our basic documents of governance, we deepen exponentially the wounds of civic life.

 The more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are much too sure they are right. Certainty is, to be sure, a constant feature of our politics–some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day’s time and arena. Their message is as clear today as it was at the Founding: Leave Constitutions alone!

Excerpts from: J. Harvie Wilkinson III, Gay Rights and American Constitutionalism: What’s A Constitution for?, 56 Duke L.J. 545 (2006).

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Proceed with caution = Orval Faubus?

Defenders of Proposition 8 argue that it is reasonable for California to proceed with caution when changing such a basic social institution as marriage. (p. 48) In my view, a desire to proceed with caution is one good reason, among others, that many Californians had in mind when voting to repeal the judicial construction of California’s constitution to create a right to same-sex marriage.

The plaintiffs’ lawyers in Hollingsworth v. Perry reject this reason. They assert, among other things, that “[i]t cannot be the law that public concern about equal treatment itself can justify a denial of equal treatment.” Their authority for this exceedingly general proposition is Cooper v. Aaron. If the law allowed concern for equal treatment to justify denial of equal treatment, they argue, “then in Little Rock in 1958, the ‘drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school “off limits” to colored students’ itself could have been enough to justify the continuation of segregation. Cooper v. Aaron, 358 U.S. 1, 9 (1958).” (p. 48)

That’s one way of looking at things, I suppose. Asserting that society should proceed with caution before rejecting the idea that marriage requires a man and a woman is just like calling out the troops to prevent black kids from attending school with white kids. I’ve never made that connection before. But the argument is just one step removed from equating (a) the claim that marriage requires a man and a woman, with (b) the claim that a “Negro woman” should not marry a “white man.” Loving v. Virginia. And that equation has been a staple of arguments for “marriage equality” for a long time.

I hope that the Supreme Court of the United States can appreciate distinctions that plaintiffs’ lawyers apparently cannot.

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Majoritarian time slicing and same-sex marriage

Suppose a contemporary national majority were to favor same-sex marriage, and the Supreme Court were to hold that a federal-law limitation of “marriage” to the union of opposite-sex individuals violated the Equal Protection component of the Due Process Clause of the Fifth Amendment. Would it be fair to describe that holding as counter-majoritarian? Not with time slicing. Without time slicing, the ruling would obviously be counter-majoritarian.

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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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