Saturday, June 25, 2011

A Quick Primer on Marriage and Federalism

Let me say at the outset that I really wish Pres. Barack Obama would openly endorse full equal marriage rights for gay and lesbian Americans on the same terms that straight couples now enjoy. That’s what the State of New York accomplished last night when the Republican-controlled state Senate approved a marriage equality bill that had already passed the state’s Assembly. Gov. Andrew Cuomo has vowed to sign the bill into law, making New York the sixth, and by far the largest, state where gay and lesbian couples can now marry legally.

Amid the celebration, however, Pres. Obama has come under attack for his recent statements on the issue, most notably:

The president has said his views [on marriage equality] are “evolving,” but for now he supports civil unions, not same-sex marriage.

Obama said progress will be slower than some people want, but he added that he was confident that there will be a day “when every single American, gay or straight or lesbian or bisexual or transgender, is free to live and love as they see fit.

“Traditionally marriage has been decided by the states and right now I understand there’s a little debate going on here in New York,” he said to laughter. New York’s lawmakers, he said, are “doing exactly what democracies are supposed to do.”

It’s that last part – leaving the question of marriage equality to the states to decide – that has gotten under many liberals’ skin, because it smacks of pre-Civil Rights-era states’ rights conservatism.

And I certainly get that; but unlike, say, employment law or laws affecting interstate commerce, the President is correct that marriage traditionally has been the province of state, not federal, law. In fact, even under the Constitution’s “full faith and credit” clause (see Article IV, Section 1), states have never been required to recognize marriages performed in other states if those marriages violate the home state’s law. So, for example, if a state allows children at the age of sixteen to marry, states with older age-of-consent laws are not required to recognize those marriages.

But that’s not to say there are no federal issues here. In fact, there are two very significant areas where federal law has a direct impact on marriage equality; and if you look at those issues carefully, you’ll find that Pres. Obama’s position on marriage equality is actually quite revolutionary and forward-thinking. First, there’s the odious “Defense of Marriage Act,” known as DOMA, Section 3 of which amends the federal definition of marriage as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

1 U.S.C. § 7.

So, under Section 3 of DOMA, even if states like New York allow gay and lesbian couples to marry, those marriages are not recognized by the federal government and those couples cannot file joint tax returns or enjoy any other federal benefit associated with marriage.

Just last February, however, Pres. Obama decided that his Administration would no longer defend DOMA in court, on the grounds that Section 3 of DOMA is unconstitutional. In a letter to Speaker of the House John Boehner, Attorney General Eric Holder wrote:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

In other words, under the Equal Protection Clause of the Fourteenth Amendment, which provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” and the implicit “equal protection component” of the Fifth Amendment’s Due Process Clause, the government is prohibited from engaging in illegal discrimination. So, the President is saying that denying federal marriage benefits to gay and lesbian couples is a form of illegal discrimination prohibited by the Constitution. More than that, the President’s position is “that classifications based on sexual orientation warrant heightened scrutiny” for purposes of equal protection analysis, which means that discrimination on the basis of sexual orientation should be treated like race and sex discrimination. This represents an unprecedented advancement in gay rights at the federal level – and specifically, marriage rights – as I explained in depth at the time the decision was announced.

And that leads to the second way in which federal law impacts equal marriage rights: Although the states are generally free to define marriage as they choose, they cannot do so in a way that violates the basic constitutional rights of their citizens. As the Supreme Court explained in Loving v. Virginia, 388 U.S. 1 (1967), a case in which it struck down state anti-miscegenation laws under the Equal Protection and Due Process Clauses of the Fourteenth Amendment:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

388 U.S. at 12.

So, under Loving v. Virginia, state marriage laws cannot be based on “classifications so directly subversive to the principle of equality at the heart of the Fourteenth Amendment” – classifications like, for example, race. But the President has said that sexual orientation should be treated as a suspect classification, like race, for purposes of determining whether the government can deprive gay and lesbian couples the benefits of marriage. Of course, the Supreme Court has yet to face the question whether states or the federal government can deprive gay and lesbian couples marriage rights under equal protection and due process principles, but this President may well appoint one or more additional justices to the Supreme Court … if he gets reelected in 2012.

So as much as I would like to see the President openly endorse marriage equality across the board, I would much rather see the United States Supreme Court declare laws banning same-sex marriage unconstitutional under the Fifth and Fourteenth Amendments. And with this President, we are closer than we’ve ever been to seeing that become a reality.

© 2012 David P. von Ebers. All rights reserved.


  1. I do think president Obama is a chess player. Looking 3 steps ahead doesn't play well in the news cycle. I hope he's also 3 steps ahead in other things, such as health care reform and getting us out of Iraq and Afghanistan. I want him to win another term.
    However, he's going to have to put out a clear message in the coming campaign.
    I hope you're right.

  2. but, but, but, BULLY PULPIT!

    (great post, dave!)

  3. Very insightful commentary. Marriage is not a federal issue except for unconstitutional laws like DOMA. I do think Obama could have a more positive influence on the debate. But his opponents would undo what progress we have made. LGBT people who are pledging to vote against Obama are biting off their noses to spite their face.

  4. Dear Counsellor von Ebers:

    As you are no doubt aware, we now have teh GAY marriage allowed in NY. I just saw Baby JESUS crying, sitting on a dinosaur and reading his KJV in the original english.