Friday, March 29, 2013
Now that oral arguments are completed, some commentators are predicting that the Supreme Court will strike down DOMA on federalism grounds. More specifically, they believe that four justices will vote to strike down DOMA on equal protection grounds and that Justice Kennedy (and maybe others) will use federalism to invalidate the act. As I've said in previous posts (here and here), there is no federalism ground under which to find DOMA unconstitutional.
Professor Noah Feldman has argued that striking down DOMA on federalism grounds would create "litigation chaos." (here) He writes, "To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.
In the first, most optimistic scenario, one or several marriage-friendly states might allow anyone from any state to get married there, creating a Las Vegas-style business in same-sex marriage. Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out-of-state marriages, and deny them state-level marriage benefits.
If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions -- across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is."
Professor Feldman's article also brings up the question of whether a state that does not allow same-sex marriage would have to recognize or give benefits to a couple who was married in a state that did allow same-sex marriage. (Such as when a couple gets married in New York but later moves to Mississippi.) I wrote a long article on this subject over ten years ago, Choice of Law and Same-Sex Marriage, 51 Fla. L. Rev. 799 (1999), and the Supreme Court jurisprudence on choice-of-law has not changed in that time. The Court's constraints on whether a state can constitutionally apply its own law in light of competing state law have been minimal since the Stone Court. The Supreme Court rule on whether a state can apply its choice of law rule is a "[s]tate must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." Allstate Ins. Co. v. Hague, 449 U.S. 302, 313 (1981). Accordingly, a state could refuse to recognize a same-sex marriage celebrated in another state by one of its citizens because that state would have significant contacts with its citizens and it would have an interest in regulating marriages and giving or denying benefits to married couples.
This conclusion reinforces Professor Feldman's arguments about "litigation chaos" under a federalism basis for striking down DOMA. If a same-sex couple were married in New York, which recognizes same-sex marriage, and then moved to Alabama, which does not, that couple would receive federal marriage benefits but not Alabama marriage benefits. Alabama could not be forced to give marriage benefits to the New York married couple in Alabama because of federalism and conflicts principles. In this scenario, the couple would be married for the purposes of federal law, but not for the purposes of the state in which they are citizens. Does this make sense under general federalism principles?
Similarly, the District of Columbia has adopted same-sex marriage by council vote. The District is not a state so federalism principles would not apply to strike down DOMA as it applies to the District. Thus, same-sex marriage would be legal in the District, but the federal government couldn't give benefits to District same-sex couples because of DOMA!
Finally, Professor John McGinnis makes a states as "laboratories for experiment" argument in support of deciding DOMA on federalism grounds. (here) He writes, "If the Court eschews a federal right for same-sex marriage, we can then measure the effects of the different marriage regimes in different states, such as effects, if any, on divorce rates of both same-sex and opposite sex couples." I am a strong supporter of state experimentation. I believe that states should be able to experiment with taxes, welfare, expenditures, education, etc. Yet should this experimentation extend to basic human rights? Should we allow a state to experiment with female genital circumcision? (Many societies have adopted this practice.) I certainly don't think so. Maybe, we were too quick in rejecting racial segregation. Maybe, there are ways to have racial segregation without being unfair. While the preceding is a ridiculous argument, same-sex marriage is as much a human rights issue to someone who is gay or lesbian as racial segregation is to one who is African-American.
In sum, federalism is not the proper vehicle to use to decide the DOMA case. Not only is the federalism argument weak, a federalism decision would cause odd anomalies in marriage law. The Court should decide the DOMA case on equal protection, up or down. While I believe that the Court should strike down DOMA under Romer or gender discrimination principles, we have to accept what the Court decides. What we definitely don't need is a decision that leads to "litigation chaos."