Monday, March 25, 2013
The question of whether federalism is relevant in the same-sex marriage cases has exploded over the last few days, particularly on the Volokh Conspiracy with several posts pro and con and hundreds of comments. The immediate cause of this controversy is a piece in the WSJ by Professor Michael McConnell advocating that the Court decide the DOMA question on federalism grounds, rather than under the Equal Protection Clause. A federalism issue, however, first arose in Massachusetts v. Dept. of HHS, which adopted a combination equal protection federalism argument to hold DOMA unconstitutional. I have argued that federalism is irrelevant to DOMA and same-sex marriage here, here and here.
The question remains why scholars are arguing so vehemently for federalism in the same-sex marriage cases, when a decision based on equal protection would settle the question once and for all. (In other words, under equal protection, restrictions on same-sex marriage are either constitutional throughout the nation or they are not.) The answer to this question is that, if the Supreme Court decides these cases on federalism grounds, then each state will continue to decide whether it wants same-sex marriage. In that instance, the situation regarding same-sex marriage in the United States would stay basically the same as it is now.
Scholars have made several different federalism arguments, but let's focus on the one made by Professor McConnell--that Congress lacked the power to pass DOMA. If the Supreme Court accepts his arguments, the Court would decide the Proposition 8 issue based on a lack of standing, and it would strike down DOMA based on federalism. This would mean that state laws on same-sex marriage would remain the same. To state the argument differently, Professor McConnell is asking the Court to ignore equal protection and instead use federalism to decide the case. He says the Court should do this because "[b]y taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage-a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being." He adds, ""Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides. In this instance, modesty requires no more than that the justices follow the technicalities of the law." He notes that the cases "are a test of the nation's democratic and decentralized constitutional structure. These cases thus are not just about marriage. They are about how we reach decisions regarding matters of deep moral significance in our federal republic." Moreover, "when all of us have an equal right to be heard on an issue, and to participate through our representatives in making the decision, it is easier to accept the outcome than when unelected judges make moral pronouncements from the bench. Change that comes through the political process has greater democratic legitimacy."
In sum, Professor McConnell is arguing that the Court can decide the DOMA case on two separate grounds--equal protection or federalism--and that it should decide the case on federalism grounds to preserve the general principles behind federalism. Assuming that McConnell is correct on his federalism argument, the question becomes should the Court ignore equal protection considerations?
My answer to this question is no. The equal protection considerations in this case are more important than the federalism ones. The Court should not use federalism to ignore violations of equal protection. While family law is a state matter, equal protection is a federal one, and the 14th Amendment was enacted to affect the federal-state balance of power. As I said in an earlier post, "Professor McConnell talks about the morality of the democratic process. I agree that this is very important and that it has not been recognized enough in recent constitutional jurisprudence. However, there is another morality–a morality that protects the individual from an overreaching government. Not only does this morality take precedence over democracy, the drafters wrote the Bill of Rights so it would."
As the court said in Loving v. Virginia, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." (Loving at 12). Should we deny this right to a group of lawfully-acting American citizens in order to preserve a state's right to define marriage? How is denying the right to marry to same-sex couples different than denying the right to marry to different race couples? Maybe I am wrong, and the Equal Protection Clause does not protect the right of same-sex couples to marry, but, if this is true, shouldn't the Court decide this on equal protection grounds, not federalism grounds?
If the Court allows the situation to stay the way it is, it will create great unfairness. Same-sex couples in state A will be allowed to marry and receive the federal benefits of marriage, while the citizens of state B will not. Should state citizenship determine whether a person receives federal benefits? How is this fair? Is this logical? Doesn't this turn federalism upside down?
In addition, the question of whether restrictions on same-sex marriage violate the equal protection clause will probably come up in a setting that will force the Court to decide this question in the near future. Why put off the inevitable for a couple of years?
In sum, I think that even if federalism is relevant to the same-sex marriage cases, the Court cannot ignore the equal protection considerations by ruling solely on federalism grounds. In this instance, the considerations behind equal protection are more important than the considerations behind federalism.
P.S. Note also that if DOMA is struck down on federalism grounds, it would remain valid for the District of Columbia and the territories.
Update: In an editorial, the New York Times declared: "The soundest approach is to recognize same-sex marriage broadly as a matter of equality under the Constitution — and therefore compel all states as well as the federal government to recognize this right. In the 2003 case Lawrence v. Texas, which struck down a Texas sodomy law as violating constitutionally protected liberty, Justice Anthony Kennedy, writing for the court, said, 'As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'”