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Posts Tagged ‘United States v. Windsor’

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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Jonathan Adler has an informative post at Volokh Conspiracy on Justice Ginsburg’s recent charge of “judicial activism.” He argues that “Justice Ginsburg’s real complaint is with the substance of specific opinions, not that the Court is too ‘activist’ . . . .” Adler’s criticism can be expanded to Justice Ginsburg’s complaint about facial invalidation of Section 4 of the Voting Rights Act in light of her vote for facial invalidation of Section 3 of the Defense of Marriage Act.

On June 25, 2013, the Court released opinions in Shelby County v. Holder. And on June 26, 2013 the Court released opinions in United States v. Windsor. Justice Ginsburg argued in her Shelby County dissent that the Court abandoned its “usual restraint” by considering Shelby County’s “purely facial challenge” to the Voting Rights Act’s 2006 reauthorization. She complained that “the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit–Shelby County, Alabama.” Yet the next day we learned that she had joined an opinion that considered the constitutionality of DOMA’s section 3 as a facial matter. Rather than ask whether Congress had the power to limit the marital deduction from the estate tax to married opposite-sex couples, the Court considered the constitutionality of DOMA § 3 as applied throughout the entire United States Code. In both cases, the facial vs. as-applied nature of the reasoning was a consequence of the underlying substantive legal doctrine. If one has a problem with facial invalidation, then, it is better cast as a disagreement with the underlying substantive legal doctrine.

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