Linda Greenhouse, America’s premier legal journalist, has posted this spot-on analysis of why a ruling that DoMA is unconstitutional based on federalism concerns would be a Trojan horse that could haunt progressives for years to come:
Beware of conservatives bearing gifts.
Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory… But at what price?
[W]hat reverberated from the bench was the discordant music of federalism – the federalism that almost sank the Affordable Care Act; the federalism that seems about to put a stake through the heart of the Voting Rights Act; the revival of the mid-1990s federalism revolution that had seemed, until recently, to have run its course at the Supreme Court with the departure of two of its most energetic guardians of states’ rights, Justice Sandra Day O’Connor and the late Chief Justice William H. Rehnquist.
I’m hardly the only one to have heard this music; some other progressives have sounded downright relieved at the prospect that if there aren’t enough votes on the court to strike DOMA down on equality grounds, at least the law might fall to the argument that defining marriage is the states’ business, into which the federal government has no business intruding. In The New Republic, Jeffrey Rosen criticized Roberta A. Kaplan, the lawyer for the plaintiff, Edith Windsor, and more mildly, Solicitor General Donald B. Verrilli Jr., for not embracing the federalism alternative served up to them by Chief Justice John G. Roberts Jr.
But as these two lawyers clearly recognized, striking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture.
It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”)
Just such a vigorous constitutionally based states’-rights argument was put forward in a brief filed in the case last month by a half-dozen law professors under the title, “Brief of Federalism Scholars.” One of the group, Prof. Randy Barnett of the Georgetown University Law Center, is justly regarded as the intellectual father of the Commerce Clause attack on the Affordable Care Act. “DOMA falls outside Congress’s powers” because “marriage is not commercial activity,” the brief declares. It argues further that by limiting federal recognition to marriages between men and women, the law “undermines the states’ sovereign authority to define, regulate and support family relationships.”
There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)
Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.
And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races. Virginia maintained that its law did not amount to racial discrimination because the prohibition ran equally in both directions – just as blacks couldn’t marry whites, whites couldn’t marry blacks either.
Consequently, the state argued, the case came down to a simple matter of federalism. But Chief Justice Earl Warren’s unanimous opinion didn’t buy it. “Marriage is one of the basic civil rights of man,” the court said. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The right, in other words, belonged to the individuals involved, not to the state.
The federalism attack on DOMA picked up steam in the days before the March 27 argument. Professor Michael McConnell of Stanford Law School, a leading constitutional scholar and social conservative, wrote in the Wall Street Journal that if the court both avoided the merits in the California Proposition 8 case (as appears likely) while striking down DOMA on federalism grounds, “the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer – one way or the other – to the same-sex marriage question.”
The headline on George Will’s pre-argument Washington Post column proclaimed: “DOMA Is an Abuse of Federalism.” Mr. Will, whose enthusiasms in the realm of legal affairs often mirror those of his friend, Justice Antonin Scalia, relied heavily in his column on the “federalism scholars’” brief.
I hate to sound cynical, but where have these people been for the past 17 years? Where were they when Edith Windsor got a federal estate tax bill of more than $300,000, a tax she wouldn’t have had to pay had DOMA not barred the Internal Revenue Service from recognizing a spousal exemption based on her New York-recognized marriage to her partner of more than 40 years?
Can it be that the conservative legal world is afraid that it can’t hold Justice Anthony M. Kennedy to an antimarriage position and so is trying to cut its losses by persuading him that if he takes the federalism route, he can have same-sex marriage (in the nine states that already have it) and states’ rights too?…
Last week, Solicitor General Verrilli, pressed repeatedly to say something nice about federalism, refused to play the game. The case, he insisted, was about “discrimination.” Lawyers rarely get the chance to speak to the court in paragraphs. When Mr. Verrilli got that chance, he took it, telling the justices: “I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law. This is discrimination in its most very basic aspect.”
It was as eloquent a statement of principle as the court hears these days. Will it translate into at least five votes? I’d like to think so.