Why “Federalism” Should Not Prevent Nationwide Marriage Equality Commentary
Why “Federalism” Should Not Prevent Nationwide Marriage Equality
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JURIST Guest Columnist David Glasgow, a fellow at the New York University School of Law Public Interest Law Center, discusses the reasons why the Windsor decision was not based on federalism…

Advocates and opponents of same-sex marriage are breathlessly waiting for news from the Supreme Court that a marriage equality case will be heard this term. The expectation of an imminent nationwide ruling comes after scores of lower courts have declared bans on same-sex marriage unconstitutional, relying heavily on the Supreme Court’s reasoning in its landmark 2013 decision, United States v. Windsor. To date only one federal ruling has broken the consensus: the September 2014 decision by Judge Martin Feldman upholding Louisiana’s ban.

At this juncture, it is worth asking why Windsor, which declared a section of the Defense of Marriage Act (DOMA) unconstitutional, has made the legal landscape so lopsided toward marriage equality. Appreciating the answer requires us to put to rest the idea that Windsor is actually a federalism decision supporting a state’s right to define marriage however it wishes. As I will argue, the near unanimity among recent lower court decisions is not a product of judicial activists licking their chops at the opportunity to impose their political ideology on the nation, but rather a logical consequence of Windsor itself.

The court’s decision in Windsor was ostensibly narrow. The question at issue was whether federal law could refuse to recognize same-sex marriages that were lawfully entered at the state level. By a majority of 5-4, the justices said no, effectively requiring consistency between the tiers of government. Even this limited ruling had profound and immediate consequences for same-sex couples in taxation, immigration and a host of other fields.

Although Windsor compelled federal law to align with the states, it did not address the separate question whether states may continue to define marriage as between a man and a woman. The court insisted that its opinion and holding were “confined” to states in which same-sex marriage is lawful. But most people, including Justice Scalia, saw through the majority’s attempt to cabin its opinion. “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia angrily predicted in dissent. His words already sound prophetic.

There is, however, a contrary view. Michigan Solicitor General Aaron Lindstrom and Deputy Solicitor General Eric Restuccia argue that Windsor was based on “federalism” and the exclusive authority of the states to define marriage. The problem with DOMA, according to proponents of this view, was that it impermissibly trampled on states’ rights. Under such analysis, when a state makes its own decision about the meaning of marriage without meddlesome interference by the feds, the law should stand, even if it excludes same-sex couples. The Louisiana judge in September hinted at this idea, noting that Windsor “repeatedly and emphatically reaffirmed the longstanding principle that the authority to regulate the subject of domestic relations belongs to the states.”

The federalism reading of Windsor has become something of a rallying cry for opponents of same-sex marriage. Sensing their power slipping away, their aim is no longer to entrench the “traditional” definition of marriage nationwide, but simply to allow the ever-decreasing number of states that retain it to be left alone. Some would say this is fair enough as a purely political claim, but as a reading of Windsor it is impoverished. Here’s why.

The majority in Windsor acknowledged that, by history and tradition, the states have had virtually exclusive authority to regulate marriage, and the federal government has deferred to the states’ policy decisions. DOMA rejected this precept by defining marriage federally to be only between a man and a woman, irrespective of the state definition. So far, so federalist. But then the court explicitly stated that it is “unnecessary to decide whether this federal intrusion on state power is a violation of the US Constitution because it disrupts the federal balance.” Why? Because the court could rely on “basic due process and equal protection principles” to strike down the law. Federalism issues made the majority suspicious of DOMA, but those issues were not the reason for the law’s unconstitutionality. The relevant section of DOMA was invalidated because it violated the due process and equal protection rights of couples in same-sex marriages, not because the federal government usurped power from the states.

Even if federalism was an important reason for the decision in Windsor, in no way would this suggest that state bans on same-sex marriage are constitutional. “State laws defining and regulating marriage … must respect the constitutional rights of persons,” affirmed the majority. And this is precisely what marriage equality advocates claim is wrong with state bans: they do not respect same-sex couples’ constitutional right to marry and constitutional right to equal protection. Whether or not Congress can poke its nose into state marriage laws is an entirely separate question from whether the Constitution allows states to exclude same-sex couples from the definition. The latter question can only be resolved by looking beyond Windsor‘s language on states’ rights to its language on gay rights.

So, does Windsor suggest that the Constitution requires marriage equality? This is unanswerable without a conception of what marriage means. It has become fashionable in conservative intellectual circles to distinguish between two “views” of marriage: a “conjugal view” in which marriage is a man-woman union ordered to procreation, and a “revisionist view” in which marriage is a private romantic commitment between two people, regardless of gender. The distinction is based on the writings of Sherif Girgis, Robert George and Ryan Anderson, whose book, What is Marriage? Man and Woman: a Defense, was hailed by conservative activists as the most “formidable defense of the tradition ever written” upon its release in 2012.

There are many reasons to dismiss the arguments of Girgis and his co-authors, which are based largely on bizarre natural law claims about “bodily union” achieved through coitus, but if their basic distinction between conjugal and revisionist views of marriage is correct, the court in Windsor has signaled its preference for the revisionist view. The opinion is replete with references to the institution of marriage as conferring a “dignity and status of immense import,” of marriage enhancing “recognition, dignity, and protection,” of it giving “further protection and dignity” to an enduring “personal bond” and of it acknowledging “the intimate relationship between two people, a relationship deemed by the state worthy of dignity.” Nowhere did the court identify procreation or children as central to the meaning and purpose of the institution: the essence of the “conjugal view” of marriage. The only references to children in Windsor were the court’s statements that DOMA “brings financial harm to the children of same-sex couples” and makes it difficult for children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Hardly a ringing endorsement of so-called traditional marriage.

Once we dispense with the narrow interpretation that Windsor was about a state’s right to define marriage however it chooses, we are left with strong hints that the Supreme Court endorses an inclusive definition. Based on its own language in Windsor and the extraordinary streak of successful marriage litigation over the previous year, I predict the Supreme Court will ride the wave of history rather than use federalism to push against it.

Note: The opinions expressed in this article are solely the author’s.

David Glasgow is a fellow at the New York University School of Law Public Interest Law Center. Prior to joining PILC, he completed the Traditional LLM program at NYU School of Law with a focus on public interest law, which included an internship at Immigration Equality through the LGBT Rights Clinic.

Suggested citation: David Glasgow, Why “Federalism” Should Not Prevent Nationwide Marriage Equality, JURIST- Hotline, Sep. 26, 2014, http://jurist.org/hotline/2014/09/david-glasgow-federalism-marriage.php


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