Monday, June 4, 2012
In Massachusetts v. Dept. of HHS, the 1stCircuit struck down section 3 of DOMA. As I noted last week, the court did so using a novel equal protection test–rational basis with federalism considerations (rational basis with a twist of federalism). The question is whether this is a legitimate basis of review. My answer is a resounding no. However, I do think that a court could invalidate section 3 under the rational basis with a bite test from Romer v. Evans.
The court felt that it was constrained from applying strict or intermediate scrutiny because of Supreme Court cases. The court, however, did think, that "rational basis with a bite" derived from Romer v. Evans and similar cases, was proper because of "the historic patterns of disadvantage suffered by the group adversely affected by the statute." In such cases, the court has undertaken "a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review." So far, this analysis fits with Supreme Court analysis in rational basis cases involving minorities.
The court, however, does not seem satisfied with rational basis with a bite standard, so it looked elsewhere to support scrutinizing DOMA more closely–to federalism principles. The court declared, "In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA's justifications and diminish somewhat the deference ordinarily accorded." The court continued, "the denial of federal benefits to same sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage. . . . These consequences do not violate the Tenth Amendment or Spending Clause, but Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed."
The court then used two federalism cases, United States v. Morrison and United States v. Lopez, "in which the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control," to bolster its analysis. The court noted, "The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases." The court added, "a statute that violates equal protection is likewise beyond the power of Congress." The court concluded, "Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns."
The court’s use of a rational basis with federalism considerations is untenable because equal protection and federalism concern significantly different interests that cannot be combined. Equal protection protects individual and group rights. On the other hand, federalism involves states’ rights. These differering protections are often at odds. States rights cannot be fused with equal protection rights to make a stronger equal protection right. Equal protection and federalism can be separate grounds for striking down a statute, but they cannot be combined to do so when one alone is not enough.
The details don’t work either. As the court acknowledged, in Morrison and Lopez, Congress lacked the power to pass the statutes under the Commerce Clause. The present case does not involve the Commerce Clause. While it is true that Congress lacks the power to pass a statute that violates equal protection, this is true of every statute Congress might consider. In addition, the court is not relying on a specific constitutional provision. Rather, it is employing on general principles of federalism from cases that involve very different situations and arguments than those in this case.
It is true that the federal government is intruding into an area traditionally regulated by the states–states traditionally define marriage. However, this does not affect the constitutionality of section 3 of DOMA. Nobody would argue with the fact that Congress has the power to pass statutes that concern how federal funds are spent. This is an area that is, not traditionally but, exclusively under Congress’s powers. As the court pointed out, nothing requires the federal government to look to state law to define marriage. Section 3 of DOMA does not affect whether states include same-sex marriage within their definition of marriage. The burden here is not on the states (federalism); it is on individuals (equal protection) who are being treated differently than heterosexual married couples. This is a classic equal protection question, not a federalism one.
What is most bothersome about the court’s creation of a new equal protection standard is that it is unnecessary. I think that the court’s rejection of all the justifications for section 3 of DOMA under its rational basis with federalism considerations would still be true under a Romer rational basis with a bite standard. What the court has done is make a relatively strong argument weaker by including an untenable basis. This is something that legal writing and trial practice teachers warn their students not to do. Litigants don’t win based on the number of arguments they make; they win by making one or a few strong arguments.
P.S. As Michael Ejercito stated in the comments to my earlier post, "Since one necessary source of this heightened rational basis standard was federalism concerns, does this mean this ruling does not invalidate DOMA as applied to Puerto Rico? Congress, after all, exercises plenary powers in Puerto Rico." An excellent question. If rational basis with federalism considerations is needed to strike down section 3 of DOMA in the states, does this mean that it stills applies to Puerto Rico and similar entities? I think the answer must be yes, and this is another problem with the court's reasoning.