Oil and Water Don't Mix: A Dangerous Combination of Equal Protection and Federalism in the Same-Sex Marriage Cases

Last fall, I noted that the First Circuit had used a strange mix of equal protection and federalism in striking down section 3 of DOMA in  Massachusetts v. Dept. of HHS.  (here)  I noted in that post that not only was the combination unprincipled, but that it was unecessary; the Court could have struck down section 3 based just on Romer v. Evans.

Now, others are also bringing federalism into the same-sex marriage debate and the cases currently before the Supreme Court.  Several scholars have argued that "Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a 'necessary and proper' measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status. . . .  Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any 'legitimate' interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and properly implied) powers."  (Volokh Conspiracy summary here; amicus brief here)

In sum, "While sounding in federalism principles, the argument is ultimately aimed at the equal protection analysis the Court is set to review.  It is an argument that there is, in fact, a federalism component in the equal protection principles made applicable to the federal government through the Fifth Amendment’s Due Process Clause.  It is thus different from the 10th Amendment decision by Judge Tauro of the Massachusetts District Court in a similar case challenging DOMA.  Our argument doesn’t rely on the 10th Amendment, but on limits on federal power that would exist even without that amendment.  We take no position in the brief on whether there is also a 10th Amendment problem with DOMA."

Both the First Circuit and the law professors' amicus arguments are dangerous, at least to proponents of same-sex marriage.  If the Supreme Court were to adopt either rational, then an argument could be made that states can ban same-sex marriage based on federalism considerations.  This would mean that some states would have same-sex marriage and some wouldn't, causing a patchwork system of marriage and raising more equal protection problems.

The theoretical problem is that equal protection and federalism are different things.  One is a right against the government, and the other is division of power between federal and state governments.  Since the equal protection clause applies to both the federal and state governments, federalism considerations are irrelevant in an equal protection inquiry.

I am a moderate proponent of federalism. (The Principled and Unprincipled Grounds of the New Federalism: A Call for Detachment in the Constitutional Adjudication of Federalism, 53 Mercer L. Rev. 811 (2002))  I think that the Court should enforce those matters within the text of the Constitution--the limits on Congress's powers and the tenth amendment.  On the other hand, I do not believe that basing federalism on things outside the constitutional text, such as the understanding at the time of enactment, which has been the justification for state sovereign immunity against Congressional enactments, is valid.  In this case, I think it is a major stretch to find any support for a federalism argument in the constitutional text. 

In addition, marriage and the benefits of marriage are separate issues.  (I have made this argument previously in connection with choice of law and same-sex marriage, Choice of Law and Same-Sex Marriage, 51 Fla. L. Rev. 799 (1999)) It has always been within the states' powers to define marriage, but how the federal government spends its money is  federal power.  Moreover, as one of the comments on the Volokh Conspiracy noted, "If marriage isn't 'commercial activity,' then what is it? Seems to me 'marriage' means two distinct things - a religious/social construct meant to sanctify certain relationships and prohibit others, and a set of commercial agreements and transactions undertaken between two people. The former, in my view, is entirely outside the purview of government - it's entirely a religious, social, or personal matter and should not be regulated by the state in any way. It's the latter that is important - the financial and contractual arrangements - and that's precisely why denying those arrangements to certain people based upon sex, race, or other prohibited class should be considered discriminatory."  Another comment stated, "The Feds are allowed to have a Fed definition of marriage for the purposes of Fed programs, and there frankly doesn't need to be any 'efficiency' justification, or any real justification at all. If the Congress passed a law abolishing all relevance of marriage for federal income tax purposes, that would raise essentially no Federalism questions. And if the Congress passed a law making 'blue-haired' or 'Fnord' a category for federal income tax purposes, that would raise essentially no Federalism questions."

As I stated in my earlier posts, I think the court will strike down same-sex marriage limitations in these cases based on Romer v. Evans (assuming the Court doesn't find any standing problems).  I also believe that the sex-discrimination argument is a good one (here), but I doubt it will get five votes.  However, in sum, I think that mixing equal protection with federalism is unwise because it will create an argument that the states have the power to ban same-sex marriage.

(Scott Fruehwald)