One More Thought About DOMA

Here’s something that I was thinking about this morning.  Everyone agrees that marriage is a fundamental right.  Everyone also agrees that civil marriages (except for the District of Columbia and certain areas of exclusive federal jurisdiction) are conferred by state law.  The question, then, is whether the refusal of the federal government to recognize same-sex civil marriages unduly interferes with this fundamental right conferred by a state.

In other words, this is not an equal protection question.  It is not a question of whether DOMA falls within Congress’s enumerated power.  Congress could refuse (and often does) to recognize all sorts of other legal determinations made by states.  The problem is that this refusal involves marriage.  Our law has assumed since the Founding that what constitutes a civil marriage is what a state says unless the Constitution says otherwise (Loving) or Congress holds municipal jurisdiction (the District of Columbia).  In other words, the definition of a marriage is final when a state makes its determination.

Anyway, we’ll all have more to chew on this afternoon.

UPDATE:  This would mean, of course, that Congress is free to deny same-sex marriage within its exclusive municipal authority.  I guess what I’m trying to say is that there’s a difference between exclusive municipal jurisdiction and exclusive federal jurisdiction (over, say, Social Security benefits nationally).

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7 Responses

  1. AndyK says:

    This is a good reason for upholding Prop 8, and I can see how it bears on DOMA, but DOMA is still a tough case.

  2. Anon 4 says:

    The problem with a pure due process claim is that no one has been denied the right to marry on unequal grounds. Gays have the same marriage right as straights: the right to marry someone of the opposite gender. The only attack can be through equal protection because the argument must be that such a definition of marriage virtually excludes a certain, identifiable group of citizens from exercising the right.

  3. Joe says:

    Anon 4, Mildred Loving was denied the right to marry on EP grounds even though she had the right to marry a person of the same race. The right to marry includes the right to choose who to marry and denying those attracted to members of the opposite race while protecting those who are attracted to those of the same race is an EP matter.

    The federalism argument is a limited one and this is underlined when at another blog I kept on asking about the federal benefits of people in DC and for some reason I kept on getting non-answers. DOMA might be partially a federalism issue but ultimately, and the court below decided as such, it is a EP issue. This would deal with a claim when a DC couple is denied bankruptcy benefits or something per @3.

  4. Shag from Brookline says:

    Tom Toles’ WaPo political cartoon today deoucts Lady Liberty and Lady Justice side by side outside the Supreme Court Building expressing their desire to marry. Can Liberty be denied Justice and can Justice be denied Liberty by the Court?

  5. Joe —

    The federalism argument against DOMA (like the argument above) does not require D.C. to recognize gay marriage. As a matter of fact, however, D.C. does .

    As for whether there is an EP violation, it really all depends on how one defines “marriage.” The right to “marry” is the right to enter into the institution of “marriage.” If marriage is defined as it has been throughout most of human civilization — as a union between a man and a woman recognized by the state largely due to the historical connection between heterosexual unions and procreation — then Mildred Loving was denied the right to enter into this institution, but gay couples are not. If, on the other hand, one defines marriage as a union of two people signifying love, commitment, etc., then there is an EP violation in denying same-sex marriage. The latter, however appealing, is a relatively modern conception of marriage.

    And, just for the record, I say all this as a supporter of gay marriage.


  6. Joe says:

    I know D.C. recognizes SSM. That is why I asked at Volokh Conspiracy more than once the effect of @3 on D.C. if the federalism argument won in Windsor. You know, because both NY and D.C. recognizes SSM and the federalist argument would not appear to help same sex couples get federal benefits there.

    I also went thru this with you. “Marriage” has changed in a myriad of ways “throughout most of human civilization,” including gender roles that changed quite recently. So, yes, there is no good reason why this specific aspect of marriage, and procreation was but one aspect of marriage (not being able to procreate as compared to various other things not a barrier, including pursuant to Catholic doctrine) over the ages. Not being able to procreate not a barrier, we need to look further. That being “proper” sex roles and traditional views of sexual orientation.

    The broad definition you cite, regardless, is the one applied in case law in the last few decades, so SSM should be protected. It is “modern” but so is many other aspects, including gender roles, legitimacy of sex outside of marriage, easy divorce, etc. Finally, I know you support same sex marriage as well as filibuster reform.

    Thanks for telling everyone else.

  7. Jimbino says:

    “Marriage is a fundamental right” is totally ambiguous.

    Marriage is a bundle of things, which include religion, cohabitation, love, sex, child-rearing, and feeding at the gummint trough of special privilege.

    Folks marry for any or all of those things. It is perfectly allowed for folks to marry who don’t love, don’t cohabit, don’t have religion, don’t have sex and don’t have kids. Even those who marry just to feed at the gummint trough of special privilege, without love, sex, etc.

    If the special privileges granted the married were eliminated, all controversy would disappear, and religious gays who married for sex, love, cohabitation, religion, and child-rearing would meet no opposition.

    Follow the money!