This is a lengthy post being published in three segments at The Country Thinker. Since Tuesday is my regular posting day here, I decided to put up the entire monstrosity in one piece.
Last Wednesday I posted a letter to The Wall Street Journal in which I made three Constitutional arguments in defense of marriage equality. The first was one I have been making for over a decade, namely, that the Defense of Marriage Act (“DOMA”) is an unconstitutional usurpation of states’ near-exclusive jurisdiction in matters of family law, including marriage. (I have inserted the text of DOMA in the End Note.)
Lo and behold, the following day the First Circuit Court of Appeals issued its opinion affirming the trial court’s conclusion that Section 3 of DOMA is indeed unconstitutional as a violation of federalist principles. As I shall explain, this was a no-brainer that everyone should agree with. I also anticipate that the Supreme Court will grant certiorari, and it will be upheld, probably 8-1, with Scalia dissenting. I also want to note that the trial court judge is a Republican appointed by Nixon, and the First Circuit held unanimously, with two of the judges also being Republican.
This piece will have four parts; 1) why everyone (and I do mean everyone) should happy about the decision, even if for different reasons, 2) what we can glean from the three presidential candidates’ Constitutional principles since all three have weighed in on DOMA and its constitutionality, 3) since many of my readers are strong defenders of the Constitution, I will review the Equal Protection arguments for those who don’t know how EP analysis works, and 4) I will review the legal basis for overturning DOMA on federalist grounds.
Why Everyone Should Applaud the First Circuit
If you truly support and defend the Constitution, there should be times when you agree with a Court decision, even if you aren’t happy about the result as a policy matter. Free Speech cases afford plenty of examples. For conservatives, this should be one of those times.
But, as I’ve said before, many conservatives (like their liberal brethren) support the Constitution except for when they don’t. Thursday’s release of the First Circuit’s opinion is case-in-point as many conservative groups came unglued, including Louisiana Congressman Jeff Landry, who made the worn-out complaint of “judicial activism.”
If you read the opinion you will find that the trial court found—and the First Circuit affirmed—that Section 3 of DOMA violates federalist principles by providing a broadly applicable definition of marriage. (The court did not say that the federal government cannot define marriage in discrete sections of legislation.) The First Circuit quoted the Supreme Court on page 20:
The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.
Any conservative should rejoice at language like this! The first and best defense against the continued explosion of the size and scope of our federal government is for courts to strictly enforce federalist principles against the federal government. We need more rulings like Thursday’s, not fewer, and conservative outrage over this case is cutting off one’s nose to spite the face.
Here is the best way to describe the holding. The federal government provides many benefits to married couples, including some tax breaks and Social Security survivor benefits. Through Section 3 of DOMA the federal government tells states who are and who are not married for deciding who can receive these benefits. No, no, no! The states tell the federal government who is married, not the other way around!
So I’ll return to my previous point that a true Constitutionalist must accept that there will be times when you must accept that Courts have interpreted the Constitution correctly even if you don’t like the outcome as a policy matter. If you judge every case by the policy result, you’re not a defender of the Constitution.
As a case-in-point, recall the back and forth between Rick Santorum and Ron Paul during the presidential debates on abortion. Santorum attempted to read into Dr. Paul’s position on abortion based on his legislative record. Dr. Paul explained that his votes were guided by his belief that abortion is a state issue, even though he is pro-life. This befuddled Santorum, and showed he is not a Constitutionalist (and therefore is unqualified to be president), and Paul most definitely is a Constitutionalist.
Turning to liberals, they should actually be less enthusiastic about Thursday than conservatives because the Courts are continuing to reject the Equal Protection case for marriage equality. Additionally, many liberals do not believe in federalism, and dislike limitations on the scope of federal authority such as this. Nonetheless, liberals should be happy with the policy result, and will now move on to fighting the battle for marriage equality on a state-by-state basis, such as the case filed last week in Illinois.
And libertarians? Most of us agree the DOMA is violates federalist principles, but also agree that limiting marriages to heterosexual couples also violates the Equal Protection Clause. But then again, we libertarians tend to read far more limitations on governmental authority in the Constitution than conservatives or liberals.
The bottom line is that everyone should be happy with the First Circuit’s opinion in one way or another. Happiest of all should be conservatives, who had both the federalist and Equal Protection arguments go their way.
Just don’t tell that to the many conservatives who think the Constitution is “flexible” and they get to win on policy grounds every time….
The Presidential Candidates and DOMA
Because the issue of same sex marriage has been in the news a lot lately, and all three presidential candidates have weighed in on this issue with Constitutional arguments, it is a case study in their Constitutional principles, or lack thereof.
As a reminder, this is the oath of the office of president:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
Defending the Constitution is a core responsibility of the office of president. That presidents from both of the major parties have ignored their central duty over the years is a large part of the reason why our country is in the mess it’s in. In my opinion, the lack of coherent Constitutional principles disqualifies a candidate for the office. That is not to say they have to agree with judicial interpretation at every turn, or their principles cannot evolve, but they must have articulable Constitutional principles that they can explain and apply to any given situation. That is a requirement, in my opinion, for any presidential candidate.
As the First Circuit observed, Obama’s Justice Department initially defended DOMA and then changed course. The most recent positions taken by Justice is that Section 3 of DOMA violates the Equal Protection Clause, but that it does not violate the 10th Amendment or federalist principles. The second position is peculiar, because when he “came out” in favor of same sex marriage a few weeks ago he said that marriage is a state issue. Thus, his Justice Department and the president are at odds with one another.
Thus, like so many other issues, the picture is murky when it comes to Obama’s Constitutional beliefs when it comes to DOMA and same sex marriage. There should be no murkiness on such a straightforward constitutional issue. You’re DQ’d on Constitutional grounds, Mr. President!
The same sex marriage issue is just another instance in which Mr. Romney has shown himself to be constitutionally infirm. On his campaign website he vows to protect and defend DOMA, which he might have the chance to do before the Supreme Court. But when asked about same sex marriage after Obama’s coming out party he said that marriage, like marijuana (huh?), is a state issue. Those are irreconcilable positions.
So far Romney’s campaign hasn’t issued a formal statement about the DOMA case, but at least one observer believes he’s waiting for polling data before forming an opinion. That is extremely disturbing if a presidential candidate interprets the Constitution in accordance with public opinion. To defer to the people when it comes to policy is fine, but not the Constitution.
Thus, it should come as no surprise that when Romney fielded a question as to whether a state can ban contraception during a presidential debate, he told George Stephanopolous “[w]e can ask our Constitutionalist here,” and motioned to Ron Paul.
Romney has a joint degree in business and law from Harvard, so we can be certain he has studied Constitutional law in grad school. With his education background he has no excuse for the lack of articulable principles, and the same sex marriage issue has revealed that he has none, even though the core responsibility of the position he is seeking is to protect and defend the Constitution.
Although I know that many will disagree, I do not believe that Mitt Romney is qualified to be president. That he might be better than Obama in some areas does not make him qualified by default.
Governor Gary Johnson
Governor Johnson believes that governments should get out of the marriage business entirely, but if they do, it’s a state issue. Additionally he believes (as I do) that limiting marriage to heterosexual couples violates the Equal Protection Clause. He sticks by these positions regardless of the audience, and regardless of any polling numbers.
Regardless of whether you agree or disagree with his positions, he has consistent Constitutional views when it comes to marriage and the Constitution, and they are defensible positions based on the text of the document.
Governor Johnson is qualified to be president when it comes to that part of the job description that requires the president to preserve, protect, and defend the Constitution.
DOMA and the Equal Protection Clause
Because so many of my readers believe strongly in the Constitution but do not have the benefit of a legal education, I decided to go through the First Circuit’s opinion because it is enlightening as to how courts interpret both the Equal Protection Clause and federalism.
To begin with, as I explained Saturday night on Libertarian Politics Radio Hour, EP analysis is actually a two-step process. First you must show that a statute or other law treats people differently. (There are also “disparate impact” cases, but that’s a subject for another day.) In this case, the express purpose of DOMA is to treat people differently under the law, so no one disputed that the plaintiffs showed a facial EP violation.
Next, a court must determine whether there is sufficient governmental interest to allow the facial violation of the EP clause. The best way to think about EP jurisprudence is that the fight isn’t really about whether there is a violation, but whether the violation is okay.
Courts use four tests to determine if a breach of the EP is constitutionally acceptable. The first three are based on “suspect classifications” such as race and gender. This information is useful should the DOMA case end up at the Supreme Court.
First is Strict Scrutiny, which is the highest hurdle for a government to clear. Strict Scrutiny is reserved for groups such as race, and when a law treats different people differently on the basis of race or national origin, a government must show a compelling governmental interest, and the law must be narrowly tailored to address the interest. Examples are most affirmative action programs, which courts have found to be narrowly tailored for the compelling governmental interest of remedying past and present racism.
Next is Intermediate Scrutiny, which is primarily reserved for laws based on gender. In these cases, a government must show the law is substantially related to an important governmental objective.
Third of the “suspect classification” tests is Rational Basis. Under Rational Basis analysis, “Courts accept as adequate any plausible factual without regard to Congress’ actual motives.” (Citation omitted.)
Finally, there are EP cases that do not involve suspect classifications, and courts review cases involving areas traditionally governed by state law with greater scrutiny than those traditionally with Congress’ purview. The First Circuit noted:
In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible . . . [in these cases judges look at the] case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.
Plaintiffs asked the court to create a new “suspect classification” for same-sex couples, but the court not only declined, but also concluded that the plaintiffs would lose even if we did. This was another victory for the anti-gay crowd, as it gives Congress the greatest latitude to draft legislation prejudicial to same-sex couples.
Using the fourth category of EP review, the court found that Congress had a legitimate interest in restricting the definition of marriage to heterosexual couples, because the federal government offers tax breaks and Social Security survivorship benefits to married couples. Thus, it would cost the government a lot of money to extend these benefits to same-sex couples.
This must have been a bitter loss for the plaintiffs, since it was the denial of these benefits that formed the basis for their claim of harm. So in the end, that which the plaintiffs sought was used against them as the governmental interest that justified the Equal Protection violation in the statutory language.
When it comes to the Equal Protection analysis, conservatives came out the big winners, if only the “sky-is-falling” punditry had taken time to read the case. I think the First Circuit is wrong here, and I hope the Supreme Court makes same-sex couples a suspect classification, and perhaps they will. But for now, conservatives should be happy.
DOMA and Federalism
Section 3 of DOMA was ultimately overturned on federalist grounds. For the life of me I cannot understand why conservatives aren’t hailing this as a great victory. For all the complaints about the usurpation of state power by the federal government, too many conservatives were quick to turn their back on federalism as soon as it led to a result they didn’t like.
To begin with, the First Circuit declined to overturn DOMA on 10th Amendment grounds. This was probably the biggest loss for small government advocates, but all the First Circuit did was apply precedent. As a reminder, the 10th Amendment states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.
The 10th Amendment is a favored section of the Bill of Rights for Tea Partiers and small government advocates generally, but the Supreme Court has interpreted it more narrowly than most realize. The First Circuit wrote:
Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 188 (1992). Whatever its spin-off effects, section 3 [of DOMA] governs only federal programs and funding, and does not share these two vices of commandeering or direct command. [emphasis mine]
As you can see, the 10th Amendment doesn’t have nearly the teeth many would like, but any small government advocate should be aware of the current state of the law. Sad to say, the First Circuit was probably correct based on existing law that DOMA doesn’t violate the 10th Amendment.
[T]he 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; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. 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 . . . 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.
In other words, Congress can’t barge into state business without justification. Defendants gave four:
1) Preserve scarce resources (spend less on Social Security benefits, etc.)
2) “Support child rearing in the context of a stable marriage”
3) Moral disapproval
4) “Freeze” the status of marriage temporarily in the wake of Hawaii’s recognition of same-sex marriages which prompted passage of DOMA.
The First Circuit rejected all four:
1) The court saw this as an argument against DOMA, not in support, as minority groups historically have been underrepresented in Congress and are less able to lobby for equal benefits.
2) Nothing in DOMA prevents a same sex couple from adopting or giving birth and raising a child jointly, therefore, cannot be a justification for DOMA.
3) Under Supreme Court precedent, moral disapproval alone is insufficient to justify passage of a law.
4) DOMA does not have a sunset provision, so the law is permanent and the “freeze” argument justification makes no sense.
The First Circuit concluded:
[M]any Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
There was something in the DOMA case for everyone, most of all conservatives. Conservatives and libertarians got a rare victory for federalism. Conservatives should be thrilled that it wasn’t decided as an Equal Protection case, and same-sex marriages did not become the next “suspect classification.” Liberals and libertarians got the result they wanted, although both would have welcomed an Equal Protection victory as well. If this case would have been about almost anything other than same sex marriage, conservatives would more easily see what a victory it was for them.
And because same sex marriage is such a hot button issue of late, it has given us an opportunity to look at the Constitutional principles of the three presidential candidates—no small issue since protecting and defending the Constitution is a key duty of the president. Using same sex marriage as a case study, we can see that only Gary Johnson stands on strong Constitutional principles. Obama’s are murky, and Romney’s pretty much nonexistent (a truly frightening thought).
I also hope my review of the legal thinking of the case was helpful for those who value the Constitution and weren’t aware of how the Supreme Court has interpreted the grand old document. You may disagree with many Court interpretations—I certainly do—but it’s still important to know what the law actually is. If you spend more time discussing what you wish it was than what it is, you may find yourself a tenured Constitutional law professor.
If the case lands before the Supreme Court, I would place highest odds on an 8-1 victory, with Scalia dissenting. The more interesting question is whether Section 3 of DOMA will fall on both Equal Protection and Federalist grounds. The Supreme Court, more than other courts, will decide cases on multiple grounds because they take so few cases. If so, I expect a 5-4 decision (or possibly 6-3) that could go either way. (There’s also the possibility of a 5-3-1 decision, with 5 going the EP route, 3 going federalism, and Scalia dissenting.)
If Equal Protection is in play, Justice Kennedy will be the swing vote, and don’t forget that he wrote a passionate defense of homosexuals in Lawrence v. Texas. Going back to EP analysis, if DOMA is overturned on EP grounds, the interesting question is whether the Court will create a new suspect classification for same-sex couples. If it looks like that will happen, don’t be surprised if Chief Justice Roberts doesn’t jump in and make it a 6-3 decision. The reason is the Chief Justice designates who writes the opinion, and he might assign the case to himself to prevent same-sex couples from becoming a suspect classification, and to keep the DOMA case a “non suspect classification” case that would have little precedential value.
After I published this I realized that I didn’t spell out the ramifications if the Supreme Court decides the DOMA case on Equal Protection grounds. If it does, same sex marriage will effectively be legalized nationwide. If so, I think conservatives would agree that the First Circuit’s more limited federalist holding sounds pretty good, and the libertarian idea of getting governments out of the marriage licensing business altogether does as well.
The bottom line is that the First Circuit’s holding is nothing more than a placeholder until the Supreme Court decides what to do with the case. If the Court declines certiorari, conservatives should rejoice because the Court’s conservative opinion will become the law of the First Circuit and likely most, if not all, of the rest of the country. But even if the First Circuit had upheld DOMA, the Supreme Court could still take up the case and decide it on Equal Protection grounds. The lesson is never get too excited about a case until it reaches its final resolution.
Here is the text of DOMA:
SECTION. 1. SHORT TITLE.
This Act may be cited as the “Defense of Marriage Act”.
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
“§ 1738C. Certain acts, records, and proceedings and the effect thereof
“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
“1738C. Certain acts, records, and proceedings and the effect thereof.”
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
“§ 7. Definition of ‘marriage’ and ‘spouse’
“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.”