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05.31.12

DOMA Ruling Is Test for Conservative Federalists

Self-proclaimed federalists should be thrilled with the federal appeals court ruling overturning the Defense of Marriage Act ... but they probably won’t be, writes Jay Michaelson

For years, conservative Republicans have touted the importance of “states’ rights” and federalism. So one would expect them to come out cheering in support of today’s ruling, by a federal appeals court in Boston, that the Defense of Marriage Act, or DOMA, is unconstitutional.

“Hooray!” one can hear them shouting. “The definition of marriage has always been a matter for the states to decide!” Not only that, but the moderately-worded, non-activist decision was unanimously embraced by three federal judges, two of whom were appointed by Republican presidents.

So why hasn’t the Right erupted in joy? Because as it turns out, its commitment to federalism is so fickle that we may reasonably question the true motives underlying it. 

Let’s go to the tape. The First Circuit Court of Appeals’ decision in Gill v. Office of Personnel Management held that DOMA violates the Equal Protection Clause of the Constitution. Notably, it did so without finding any constitutional right to same-sex marriage, and without endorsing the plaintiff’s argument that the law was motivated purely by anti-gay bias.

Rather, it did so on two bases: “disparate impact on minority interests” (i.e., DOMA targeted gays) and “federalism concerns.” Together, these factors warranted a “careful assessment of the justifications” which DOMA could not withstand. (Note to court-watchers: this was not strict or even intermediate scrutiny, but a case-by-case standard of review that the court said was appropriate in cases like this one.)

In the past, when conservative priorities have come up against federalist principles, the federalist principles have lost.

So what are those “federalism concerns”? In ruling that DOMA couldn’t stand, the court acknowledged that marriage has always been under the purview of states, not the federal government. This is why President Obama’s recent endorsement of marriage equality, however ambivalent it sounded, was consistent with American law and tradition: he said while he favors it, ultimately it’s a matter for the states. (Weirdly, a recent New York Times op-ed called this view a “contradiction,” while proceeding to make the same argument that underlay Obama’s statement.)

But DOMA changed all that. For the first time in history, Congress told states who counts as married and who doesn’t. It never told states that men couldn’t marry their sisters, or that white men couldn’t marry black women—only that men couldn’t marry each other.

The Gill court recognized this. Observing that many states have banned same-sex marriage, while others have affirmed it, the court said that “one virtue of federalism is that it permits this diversity of governance based on local choice,” a principle that “applies as well to the states that have chosen to legalize same-sex marriage” as to those that have prohibited it.

This is a principle conservatives should like. For the last 150 years, conservatives have championed states’ rights, insisting that the federal government should not interfere in state policies on slavery, civil rights, abortion, and other issues. But of course, all those policies were conservative: allowing slavery, allowing Jim Crow, banning abortion, and so on. Today’s battles over abortion and contraception are likewise being fought mostly at the state level, with conservatives empowered by a federalist-minded Supreme Court. 

So what happens when federalism supports the more liberal position?

If the past is any guide, few self-proclaimed federalists will be dancing in the streets today.  Usually, when conservative priorities have bumped up against federalist principles, the federalist principles have lost. Probably the most disingenuous decision in Supreme Court history was Bush v. Gore, in which the Court’s most vociferous “federalists” suddenly did an about-face and overturned the Florida Supreme Court’s decision on hanging chads. With the presidential election hanging in the balance, federalism flew out the window.

Likewise, of course, in the punditocracy. Doubtless we will soon hear cries against activist judges changing centuries of “tradition.” (Presumably, such traditions do not include polygamy, levirate marriage, marrying the widows of conquered soldiers, concubinage, marriage to young girls, arranged marriage, and marriage to slaves, all of which were endorsed by the Bible and religious communities. But I digress.) 

And no doubt, the Gill decision will impact the marriage equality battles taking place this year in Maine, Minnesota, and elsewhere.

In the end, the real question is for the fair-weather federalists: Why is federalism good when it supports conservative values, but bad when it supports liberal ones? What principles, other than expediency and a preference for government-sponsored moralizing, explain why the federal government should trample on states’ rights in the case of defining marriage, but respect states’ rights when it comes to restricting access to abortion?

(As for the progressive counterpart, Janson Wu, one of the lawyers who argued Gill on behalf of Gay & Lesbian Allies and Defenders, said that “federalism has been an important part of our legal argument, but we have always maintained that federalism has its limits—the Fourteenth Amendment specifically being the most important.” That is a clear political principle.)

This conversation matters because Gill is certain to be appealed, which means the Supreme Court will likely rule on it next year. They, of course, have the authority to go farther than the First Circuit did (perhaps overruling a 1972 precedent finding same-sex marriage is not protected by the Constitution), or to let the decision stand as is, or to overrule it and allow Congress to legislate morality to the states. Federalism, along with constitutional rights, will be a crucial element in that process. I challenge a single conservative federalist to explain why it doesn’t apply here.