JURIST Guest Columnist Julie Nice of the University of San Francisco School of Law says that concerns about federalism principles should lead the Supreme Court to review current litigation surrounding the Defense of Marriage Act, and to hold that the Act is unconstitutional…

In the endlessly theatrical battle over the constitutionality of governmental refusal to recognize same-sex marriages, federalism has been quietly stealing part of the show. In Section 3 of the Defense of Marriage Act (DOMA), the US Congress enacted an unprecedented blanket exclusion in refusing to recognize same-sex marriages deemed lawful by the states. Although it was a notoriously rushed and unusually brief enactment, DOMA nonetheless imposes a sweeping effect on more than one thousand federal benefits as well as uncounted state benefits that incorporate or otherwise rely on federal marriage recognition. Given that DOMA marked such a dramatic departure from the long-standing federal governmental practice of respecting state authority to solemnize marriages, perhaps it is not surprising that federalism is finally making a star turn.

What makes this episode especially riveting is that the political camps appear to have exchanged their usual federalism talking points. Progressives and others who favor recognition of same-sex marriage are now in the position of invoking the virtues of federalism. Meanwhile, those opposed to same-sex marriage are left to argue against judicial inclusion of federalism concerns. Indeed, the conservative camp sounds downright aghast that one of their go-to “thumbs on the scale” weighs against them in the same-sex marriage context.

The battle recently erupted after the US Court of Appeals for the First Circuit explicitly invoked federalism as an additional factor justifying its “closer” examination of the federal government’s refusal to recognize lawful same-sex marriages. Like the other federal courts struggling to interpret the US Supreme Court’s rather minimalist doctrinal forays into the gay rights arena, in Commonwealth v. US Department of Health & Human Services the court had to determine the proper level of scrutiny for reviewing a law that discriminates against same-sex couples. Not surprisingly, the First Circuit felt itself squeezed. On the one hand, the panel perceived that precedent regarding the constitutionality of the military’s ban on service by openly gay soldiers prevented application of suspect classification or heightened scrutiny analysis. On the other hand, the court was bound by the trilogy of rationality-review-with-bite decisions in which the Supreme Court invalidated governmental discrimination without invoking suspect classification or heightened scrutiny precisely because the factual context gave rise to suspicion and thus cancelled the usual presumption of validity that favors much run-of-the-mill regulation. (For more about the levels of scrutiny and the Moreno–Cleburne–Romer trilogy, see my prior op-ed.)

What’s a circuit court to do between such a rock and hard place in 2012? The First Circuit chose to follow the Supreme Court’s lead while attempting to carefully toe the line, concluding that its equal protection analysis should scrutinize the purported bases for DOMA “with care” but without applying heightened scrutiny. The First Circuit further bolstered this analysis by invoking concerns of federalism. While conceding that DOMA does not violate Spending Clause or Tenth Amendment limits, the circuit court noted, nonetheless, that DOMA “intrudes extensively into a realm that from the start of the nation has been primarily confided to state regulation,” and also that no precedent exists for the “sweeping general ‘federal’ definition of marriage for all federal statutes and programs” under Section 3.

With regard to federalism, the First Circuit analogized to the “special care” the Supreme Court has applied in its unusual invalidations of federal statutes that regulate “matters customarily within state control” pursuant to Commerce Clause authority. Specifically, the First Circuit cited the Supreme Court’s invalidation of part of the Violence Against Women Act in US v. Morrison and the invalidation of a federal prohibition on possession of guns near schools in US v. Lopez. The First Circuit found the Commerce Clause comparison apt because, like federal statutes that exceed the limits of federal authority, federal statutes that violate individual rights are “likewise beyond the power of Congress.”

Here’s the First Circuit’s succinct summary:

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.

The circuit court then proceeded to examine each purported justification for DOMA’s refusal to recognize same-sex marriages that are lawful in Massachusetts and, joining the emerging judicial trend, found no adequate support for any permissible federal interest.

Next up: the Supreme Court. Both Paul Clement, representing the three Republican leaders of the Bipartisan Legal Advisory Group (BLAG), and Solicitor General Donald Verrilli have filed petitions urging the Supreme Court to review the First Circuit’s invalidation of DOMA, although the Obama Administration nonetheless concurs that DOMA is unconstitutional. Clement has argued that the First Circuit’s toe-the-line approach applied an “entirely novel” form of scrutiny and reached a result that “should have been impossible.” His argument largely ignored the First Circuit’s emphasis on its separate consideration of equal protection and federalism.

Instead, Clement seized upon the panel’s characterization that the governing precedents of equal protection and federalism “combine” to require a closer-than-usual review. He argued that this combination created a new “fusion” of equal protection and federalism, which created a new “federalism-based intensified scrutiny,” which was “outcome determinative in this case.” Clement’s petition characterized the First Circuit’s invocation of federalism as “doubly surprising” and “fundamentally misplaced” both because equal protection applies equally to federal and state actions and because it constrains the states rather than protects them.

For his part, Verrilli’s petition urging Supreme Court review simply noted that the First Circuit bolstered its application of a more searching examination of the purported justifications because Section 3 marks a broad intrusion on the States’ historic powers to regulate domestic relations. Verrilli also asserted that Section 3 bears no substantial connection to protecting state sovereignty because it denies recognition of same-sex marriage for federal purposes, “regardless of the content of state law.”

This is no sideshow. Instead, the skirmish provides an important opportunity to consider the purposes of federalism and how they relate to the federal refusal to recognize lawful state marriages. First, federalism generally splits governmental sovereignty to reduce the danger of tyranny and specifically limits the power of the federal government. But Section 3 works in direct opposition to these goals by extending the reach of federal power and undermining state authority to regulate in the domestic relations domain.

Second, federalism is designed to promote the function of states as laboratories of democracy. Those who teach family law can attest to the fact that the complex variation among states regarding recognition of same-sex relationships must be one of the most highly developed examples of state experimentation from any period of American legal history. But Section 3 trumps state experimentation, and does so in a viewpoint-discriminatory manner, by favoring the choice of states that refuse to recognize same-sex marriage while refusing to respect the choice of states that recognize it.

Third, federalism often serves as an interpretive guide regarding how to construe the Constitution. While federalism certainly cannot justify violation of individual rights, as Clement properly concedes, the Court frequently considers federalism implications in considering how to interpret various constitutional provisions.

Finally, related to its role as an interpretive guide, federalism sometimes works to reinforce our representative system of government. The Supreme Court has demonstrated particular concern with complex and convoluted combinations of state and federal decision-making that confuse voters who need to know which level of government is responsible for the policy in question. Again, Section 3 operates not to clarify but to obscure governmental responsibility. It is easy to see that couples might be quite confused as to which level of government is responsible when they are denied a federal or state governmental benefit due to the denial of federal recognition of a marriage otherwise deemed lawful by a state.

One looming problem, largely ignored by both Clement and Verrilli, is DOMA’s effect on state benefits. As a practical matter, the effect of Section 3 is not limited to federal benefits but broadly impacts state benefits that incorporate or depend on federal marriage recognition. Either due to preemption of federal law, such as the Employee Retirement Income Security Act (ERISA), or due to benefits jointly administered by both federal and state governments, commonly referred to as “cooperative federalism”, many state benefits and state-regulated private benefits are tied to federal marital status recognition. One need only look to the recent decision in Dragovich v. United States Department of Treasury from the US District Court for the Northern District of California to see how this is so.

Dragovich involves a class action brought by public employees of California and their lawful same-sex spouses or registered domestic partners. California’s Public Employees’ Retirement System (CalPERS) provides various health care and retirement benefits, including long-term care insurance. These same-sex couples sued the US Department of the Treasury, which oversees the Internal Revenue Service (IRS) and gives favored tax treatment to state benefits plans that meet federal requirements. Because California apparently feared losing favored federal tax treatment of its benefits plan, it excluded lawful same-sex spouses and registered domestic partners from its long-term care insurance, even though the California Supreme Court had ruled that same-sex spouses and registered domestic partners are entitled to all the rights under state law that opposite-sex married couples enjoy (except, following Proposition 8, the moniker “marriage”).

In other words, Dragovich is an example of Section 3’s operation, in practical effect, to deny not federal benefits but state benefits to same-sex couples legally recognized by state law. This is hardly in furtherance of federalism. Again, following the emerging trend, the district court conducted a thorough analysis of all purported justifications for Section 3 and found it not rationally related to any legitimate government interest as applied to same-sex spouses. (While DOMA does not address domestic partners, the court found that the exclusion of such lawfully recognized partners via another federal statute, which regulates long-term care plans, also failed rational basis review.)

If the Supreme Court accepts one of the numerous petitions urging it to review DOMA, its examination would occur in the immediate aftermath of the Court’s recent blockbuster health care reform decision that marked the first invalidation of federal spending as intruding too far into the province of the states. Of course the Court upheld the individual mandate portion of the Affordable Care Act (ACA) requiring citizens to either maintain minimum coverage or else pay a federal fine as a valid exercise of taxing power. But federalism played a major role in the Court’s other two holdings: that the minimum coverage requirement would not fall within the power of Congress to regulate commerce and that the denial of all Medicaid funds to states failing to comply with the federal expansion of Medicaid eligibility did not fall within federal spending power. As Chief Justice John Roberts explained: “Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system.”

This spirited defense of federalism occurred in the context of a system where the states had a choice whether to accept federal funding with all strings attached. In comparison, DOMA offers no incentive and no choice but directly mandates refusal of federal recognition with all the effects that follow on both federal and state programs, as Dragovich demonstrates. To be consistent, the Court should evaluate DOMA in light of how it practically operates within the states. The Supreme Court specifically relied upon the broader factual context for its conclusion that the choice of expanding Medicaid or losing all Medicaid funding was not a real choice but was “a gun to the head” because Medicaid funding constituted an average of 10 percent of a state’s overall budget.

In this powerful invocation of federalism, the Supreme Court reaffirmed that federalism “secures to citizens the liberties that derive from the diffusion of sovereign power.” This interrelationship between the limit of federal authority and the protection of individual rights is the same principle that the First Circuit invoked in holding that equal protection and federalism, separately and together, required closer examination of DOMA. It looks like we may soon see whether the Supreme Court will allow federalism to bolster protection of the liberties of all, without regard to sexual orientation.

Julie Nice is the Herbst Foundation Professor of Law at the University of San Francisco School of Law. Her scholarly work focuses on constitutional law, poverty law and sexuality law. Nice has received numerous awards for her law teaching, including the 2011 and 2010 Distinguished Professor Award at the University of San Francisco. Her forthcoming article tracing the genealogy of the responsible procreation defense is titled The Descent of Responsible Procreation: A Genealogy of an Ideology.

Suggested citation: Julie Nice, Federalism Concerns in DOMA Litigation, JURIST – Forum, Aug. 1, 2012, http://jurist.org/forum/2012/07/julie-nice-doma-federalism.php .