Posted by Dale Carpenter:
(Not Just) Another DOMA Challenge:
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247197594
The [1]federal complaint in Commonwealth v. HHS was filed yesterday by
Massachusetts, which is asking for federal recognition of its same-sex
marriages, not for the invalidation of all state laws limiting
marriage to opposite-sex couples. Massachusetts makes two
federalism-based constitutional claims against Section 3 of DOMA,
which defines marriage as the union of one man and one woman for
purposes of federal law.
The first claim is that Section 3 "violates the Tenth Amendment,
exceeds Congress�s Article I powers, and runs afoul of the
Constitution�s principles of federalism" by creating an extensive
federal regulatory scheme in a field ("domestic relations") reserved
exclusively to the states. [2]Complaint at 22. That, says
Massachusetts, interferes with a state's traditional authority to
define marriage as it sees fit.
The second claim is that Section 3 "violates the Spending Clause"
because it (a) induces the state to violate the Equal Protection
Clause and because (b) "there is no nexus between discriminating
against individuals in same-sex marriages and the purposes advanced
by" specified federal programs. [3]Complaint at 23-24.
The lawsuit is different from other pending challenges to Section 3,
see [4]here and [5]here, because it's brought by a state, not gay
couples, and because the core issue is federalism, not individual
rights.
As a policy matter, the Massachusetts lawsuit is a compelling
challenge to DOMA. The Complaint offers some very interesting examples
of ways in which Section 3 complicates a state's recognition of
same-sex marriages and withholds important benefits from gay families.
These range from large and important federal deprivations, arising
from programs like Social Security and Medicaid, to obscure but
poignant ones.
In the latter category, for example, falls federal funding for
state-run veterans cemeteries, where both vets and their spouses are
eligible to be buried. Massachusetts was told by the Veterans
Administration that it would lose federal money for upkeep of a
cemetery if it allowed the same-sex spouse of a vet to be buried
there. [6]Complaint at 20-21. A six-page addendum specifies some of
the more than 1,000 ways that federal law confers entitlements or
imposes obligations on married couples -- all of which are limited to
opposite-sex couples under Section 3.
Moreover, again as a policy matter, the Massachusetts lawsuit
convincingly sketches several ways that Section 3 enlarges federal
authority and undermines state authority in an area of traditional
state control. Section 3 complicates, and imposes identifiable costs
upon, a state's recognition of its own citizens' same-sex marriages.
The state, in essence, must keep separate books for same- and
opposite-sex marriages where eligibility for federal benefits is
concerned. And, if it wants same-sex couples to have the same benefits
available to opposite-sex couples, it must make up the difference out
of its own revenues. Section 3 is a departure from the tradition of
federal reliance on the states' definition of marriage, as
Massachuestts says. There is a genuine federalism concern here.
Overall, these policy arguments are a strong rebuttal to the [7]Obama
DOJ's view that federal "neutrality" justifies Section 3 because
otherwise non-SSM states will be forced to subsidize SSM in places
like Massachusetts.
But I am less persuaded that these concerns rise to constitutional
dimensions, at least under existing precedents. For all the harm it
does, DOMA does not forbid a state to define marriage as it sees fit.
DOMA does not forbid a state to provide equal marital benefits and
privileges to same-sex couples under its own laws and programs. At
most, it makes a state's recognition of same-sex marriages more
cumbersome and costly than it would be if the federal government
continued to defer to the state definition. This could, at least in
theory, though probably not ever in fact, discourage a state from
trying same-sex marriage.
All of Massachusetts' examples of federal "imposition" of
unprecedented costs and regulation are in fact uses of Congress's
Spending power. As the Court understands that power, in Lopez v. Dole,
Congress can spend in areas it could not directly regulate. Congress
is free to dangle monetary carrots or brandish financial sticks within
very broad limits, even in areas historically left to state power. The
connection between a condition on the funds and the spending program
itself need only be "rational." In the Wonderland of
constitution-speak, DOMA can be crazy without being irrational.
Massachusetts also appears to rely on a case called New York v. United
States to argue that Congress is "commandeering" it to administer a
discriminatory federal program. But there's nothing unusual about
Congress's decision to set up a federal benefits program and then
define the limits of eligibility. A state might want the retirement
age to be 55, but Congress can make it 62 or 65 or 105. A state might
want to make the middle class eligible for assistance in obtaining
health benefits, but Congress can limit federal eligibility to poor
people -- as it defines "poor." All of these things might increase a
state's administrative costs, discourage experimentation, and be
terribly unfair to people left out. But that doesn't make them
unconstitutional.
What Congress can't do, to be sure, is to limit eligibility in a way
that violates constitutional rights. It couldn't make Medicaid
available only to whites. Under Lopez, Congress also can't try to
induce a state to violate individual constitutional rights. It
couldn't deny Medicaid money to states that make health benefits
available to racial minorities. Parts of Massachusetts' Complaint do,
in fact, argue that denying marriage to same-sex couples would violate
equal protection principles. That's the implication of the state's
claim that DOMA forces it into either facilitating the federal
government's marriage discrimination or losing federal aid.
In that respect, Massachusetts' lawsuit is a cousin to the existing
DOMA challenges. Success for Massachusetts would likely help advance a
result it expressly disclaims: the erosion of all laws excluding gay
couples from marriage. The upshot, then, is that a lawsuit to protect
state power against a one-size-fits-all federal definition of marriage
will hasten a one-size-fits-all federal definition of marriage.
References
1. http://www.mass.gov/Cago/docs/press/2009_07_08_doma_complaint.pdf
2. http://www.mass.gov/Cago/docs/press/2009_07_08_doma_complaint.pdf
3. http://www.mass.gov/Cago/docs/press/2009_07_08_doma_complaint.pdf
4. http://www.volokh.com/posts/1243451221.shtml
5. http://www.glad.org/uploads/docs/cases/gill-complaint-03-03-09.pdf
6. http://www.mass.gov/Cago/docs/press/2009_07_08_doma_complaint.pdf
7. http://volokh.com/posts/1244844195.shtml
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