Dr. Jillian T. Weiss

Why DOMA? The "What The Heck?" Defense

Filed By Dr. Jillian T. Weiss | July 09, 2010 2:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Attorney General, DOMA, gay marriage, Gill, GLAD, marriage equality, Massachusetts, Office of Personnel Management, same-sex marriage

In my last post, I discussed how the concept of equal protection works.

I explained that the government, if they're going to treat a group unequally, must have a rational basis for doing that.

Congress had come up with four reasons when it passed DOMA, but they are so easily shown to be unreasonable that the Administration didn't even try to assert them. They all pretty much amount to "we don't like gay people," and "we like straight people to get married."

Instead, the Administration came up with some equally boneheaded reasons of its own that pretty much clearly had nothing to do with anything, except in some lawyer's mind.

I call it the "what the heck?" defense. I can hear the lawyers at the Justice Department sitting around over late night cups of coffee. "Hey Joe, should we argue that DOMA, uh, gives voice to, uh, Congressional desire to, uh, like, avoid social problems by, uh, preserving the status quo?" "Sure, Sam, isn't that what statutes always do? What the heck, let's give it a try."

They had to keep dancing around the fact that a lot of members of Congress just don't like gay people, and said so on the record when they were passing DOMA. But the U.S. Supreme Court has previously said that's not a valid reason for a law. So they kept dancing.

More fancy footwork after the jump.

There Is A Good Reason To Discriminate Against Gay Marriages: We're Confused By Them

The Administration argued that there is a good reason to discriminate against gay marriages.

You see, it's to preserve the "status quo," pending the resolution of the debate taking place in the states over whether to sanction same-sex marriage. They argued that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits. Consistency, you know, is really important. Especially in marriage.

But Judge Tauro dismissed this reasoning. Congress has never had any interest in a uniform definition of marriage. And Congress isn't in the marriage business. That's the business of the states.

As the Judge put it, "There is no such interest."


The fact is that Congress got along just fine for a couple hundred years with having each state define marriage, despite changes and inconsistencies, and thereby the federal benefits that come with marriage.

The Administration argued against this logic, saying that marriage equality is "qualitatively different," because it's more contentious and rapidly changing than any other marriage issues. But the Administration apparently forgot that the debate over interracial marriage fifty years ago (not a long time in the law) was quite contentious and rapidly changing. And the U.S. Supreme Court didn't have any problem dealing with that issue -- it declared such laws unconstitutional, regardless of how socially contentious that might have been.

Judge Tauro also dismissed the idea that "maintaining the status quo" as of 1996, when DOMA was passed, could only be understood as maintaining a certain definition of marriage. The fact is, the status quo in 1996 was that there was no single definition of marriage, and that each state could have its own.

Anyway, "preservation of the status quo," in and of itself, is not a legitimate government interest. It might be if the problem it is supposed to address is really important. But the only "problem" here is state-to-state inconsistencies in the distribution of federal marriage-based benefits. DOMA doesn't, in fact, change that. It's as inconsistent as ever. All DOMA does is deny marriage benefits to a single group.

The Administration also claimed that DOMA made things simpler, because the Federal Government is not administratively equipped to deal with the consequences of recognizing same-sex marriages. But Judge Tauro said that DOMA makes things more complex, not simpler. It divides state-sanctioned marriages into two categories, those that are valid for federal purposes and those that are not. And that division, cutting across over 1000 federal laws and benefits applicable to married couples, makes things very complex indeed.

Ultimately, Judge Tauro said that none of the Administration's justifications for the law seemed to have any real relationship with the law itself. DOMA, without any plausible justifications, simply seems to be grounded on animus against gay people. And that is very clearly not allowed under the equal protection concept. Even the most rabid defenders of DOMA know that.

For these reasons, Judge Tauro declared that Nancy Gill, as a federal worker, and her partner, should be entitled to receive federal benefits available to all other married couples.

But the other lawsuit, by the State against the Department of Health and Human Services, required slightly fancier logic.

Commonwealth v. Health and Human Services

Judge Tauro couldn't just use the equal protection analysis from Gill to strike down DOMA in the Commonwealth case. The Commonwealth couldn't directly raise the issue of its citizens' equal protection rights, because only a person whose rights are denied can raise those interests. Instead, the State asserted that it was losing money because of the DOMA definition of marriage. But the problem with that "lost money" argument is that Congress has the right to tax the State and its citizens, and to provide benefits, and taxes and benefits often differentiate between different groups.

But by raising the question of what Congressional authority gave Congress the right to define marriage in DOMA, the Administration's answer was "The Spending Clause."

As noted in my previous post, that would be okay, except that the Spending Clause can't be used as authority for violating other provisions of the Constitution -- like the equal protection clause.

So Judge Tauro was able to use the equal protection argument, in the end, to show that Congress didn't have authority under the Spending Clause to pass DOMA.

Tenth Amendment

The Tenth Amendment is today generally the province of wild-eyed conservatives, whining shrilly about the feds taking over and stroking their guns in the basement.

Thus, that is why Professor Balkin, writing the NY Times today, made a comment about "I'll give you Tenth Amendment!" Pretty funny stuff for a law professor (especially one from Yale).

But he's right. Conservatives who are principled (tiny Venn diagram to follow) will have a hard time arguing against Judge Tauro's Tenth Amendment argument.

There are few different issues under the Tenth Amendment, which I will not bore you with here, but the "key prong" of Tenth Amendment analysis addresses whether the federal regulation endangers the State's separate and independent existence. Judge Tauro said that the question wasn't even close. The record includes concrete examples of the impediments DOMA places on the Commonwealth's basic ability to govern itself -- the veterans' benefits, and the MassHealth payments discussed above.

Is Professor Balkin Right About The Decisions Contradicting Each Other?

Far be it from me to contradict Jack Balkin. I certainly don't pretend to have his knowledge and skill. But I do wonder what his actual point is.

According to the Times article, he said that "the opinion in the advocacy group's case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern."

This I do not understand. The fact that the U.S. Constitution constrains the federal government from applying its laws unequally to different classes of married couples does not, by itself, suggest that the federal government has the power to regulate marriage.

If we were in the Equal Protection Restaurant, that follows Constitutional principles of this sort, there might be a problem with the management permitting the use of ketchup with hamburgers, but placing a big sign in the restaurant prohibiting the use of ketchup on steak. That could violate Equal Protection principles of treating similar things differently. (Of course, it depends on one's culinary viewpoint of the historical meaning of various foods, but hey, it's just an analogy.)

Would that mean the restaurant could define hamburger as steak? I don't think so. I don't see that the application of Equal Protection principles has anything to do with the right to define the underlying thing. I don't see why the two have anything logically to do with one another.

The other matter I don't understand is Professor Balkin's assertion that this is going to invalidate a lot of government programs. There are a lot of federal programs that give money to states in exchange for states adopting federal definitions of "highways" "drinking age," and "health benefit programs" and the like. But none that I know of reclassify road workers, drinkers or insureds based on their marital status, and none of them have even a glint of the type of equal protection problem that DOMA poses.

If they did, then I would see his point.

I look forward to hearing more from Professor Balkin, and the appellate courts, on the topic.


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lol I'm still stuck on that ketchup/steak analogy. You're gonna have to run that by me again!

Professor Balkin said that "the opinion in the advocacy group's case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern."

He's saying, as far as I can tell, that if the federal constitution applies to marriage statutes, then the Congress has the right to define marriage.

That sounds wrong to me. The fact that marriage statutes must have a rational basis under the US Constitution doesn't mean the US Congress gets to define marriage.

My analogy is to a restaurant -- the Equal Protection Restaurant -- that follows Constitutional principles of equal protection. Similar things must be treated similarly.

Hamburger and steak are both meats. Allowing ketchup with hamburger meat, but not with steak meat might be considered an equal protection violation.

Let's say that the Restaurant Court (the one that meets over in that last booth on the right on Tuesday nights) decided that the Equal Protection concept meant that ketchup had to be allowed with both meats.

Would that mean the Restaurant Management could re-define "meat" to include only hamburger?

I don't think so. The requirement that both meats be treated equally doesn't mean that one can re-define the word "meat." In fact, it means the opposite: the Restaurant Management cannot re-define it

I've been doing some more thinking about Professor Balkin's point.

I think he might be alluding to the idea that the Court implicitly validated Congress's right to use marriage as a criterion for federal benefits. If Congress has a right to use a particular criterion for handing out federal benefits, then surely it can define that criterion?

Yes, that's true. And Judge Tauro's decision didn't say differently. His decision didn't say Congress has no right to use marriage for purposes of federal benefits. Rather, in using such a criterion, it has to comply with the limits on Congressional power.

If Congress, for example, decided that it would hand out certain federal benefits to families - can't it define "families?"

Yes, but within limits. It can't just pick certain relatives it doesn't like and say they're not part of a family. (That's the Moore case, for you legal eagles.)

So of course the Government can use "marriage" for purposes of handing out federal benefits. But it can't pick only certain marriages that it likes.

Here's another example of limits on Congressional power to re-define state law.

Congress can and does use state criminal offenses as predicate offenses for its enhanced sentencing laws. And it has the right to define the use of those state offenses in federal sentencing. (Taylor)

But Congress has no power to tell the state that a crime isn't a crime, or a different crime, or what the sentence for that crime should be in state court.

The federal courts can even say that a state crime violates the equal protection clause, but that doesn't give Congress the right to re-define state criminal laws.

But here you can say: "Aha, Weiss, you fool. You have given away the game! For in the Taylor case, the US Supreme Court said that Congress could treat a non-burglary state conviction as if it were a burglary conviction for federal purposes of enhanced sentencing! Congress can't tell the state what's a burglary and what's not, but it can define, for federal purposes, what constitutes a burglary! So surely the government can define, for federal purposes, what constitutes a marriage?"

At which I will calmly wave my hand and say: A mere piffle, my dear fellow. Congressional power to deal with crime, concurrently with the states, has long been grounded in Congress's power to regulate interstate commerce. Crimes that substantially affect interstate commerce may be defined by Congress. And when Congress has concurrent jurisdiction with the states, it may define for federal purposes to its heart's content.

But Congress has no Constitutional authorization or jurisdiction to create marriages or define them!

The definition of marriage has no substantial effect on interstate commerce, and the Administration didn't even try to go there.

Instead, it chose the "Spending Clause" as its authorization to define marriage for federal purposes. "It our money, and we can say where it goes," is the feds' reasoning.

Yes, that is true -- up to a point. Just as the Government cannot decide to exclude certain family members from its definition of family, it cannot decide to exclude certain marriages that it doesn't like.

Marco Luxe | July 14, 2010 7:31 PM

I too was frustrated by the holes in Belkin's opinion. Thank you, thank you, thank you for pointing this out. So far I haven't read any of his clarifications that make much legal sense, considering that the federal government has nearly always deferred to the various state substantive definitions of marriage for federal purposes. I think Belkin is too aware of the political or ideological impediments to marriage equality currently in the SCOTUS.