BOSTON (May 31, 2012) – On Thursday, the First U.S. Circuit Court of Appeals ruled section three of the Defense of Marriage Act (DOMA) unconstitutional, citing a state’s power to determine its own definition of marriage.
Appeals Court Judge Michael Boudin, a President George H.W. Bush appointee, wrote the unanimous opinion for the three-judge panel.
“Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”
DOMA passed in 1996 during the Clinton administration. Section two of the law stipulates states do not have to recognize same-sex marriages valid in other states, and section three creates a federal definition of marriage.
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
The law does not invalidate same-sex marriages in states that allow them, but it does deny same-sex couples federal benefits, such as the ability to file as “married” on tax returns and access to Social Security survivor benefits.
The appellate court ruling dealt with section three.
“No precedent exists for DOMA’s sweeping general ‘federal’ definition of marriage for all federal statutes and programs,” Boudin wrote.
The court based its opinion on the states traditional authority over domestic relations under the Tenth Amendment.
“It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation–domestic relations and the definition and incidents of lawful marriage–which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago (Hisquierdo v. Hisquierdo), ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States,’” Boudin wrote.
The ruling was hardly an overwhelming victory for those who support a strict separation of powers between state and federal government under the Tenth Amendment.
“In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded,” Boudin wrote.
Boudin acknowledges that many valid reasons exist for federal intervention in state marriage law, but in their analysis, the First Circuit judges concludes the justifications for DOMA do not rise to a level allowing the federal government to encroach on what is typically a state power.
“I wouldn’t call this a resounding victory for the Tenth Amendment,” Tenth Amendment Center communications director Mike Maharrey said. “But I am pleased the court at least acknowledged federalism’s place in the U.S. system and recognized the dominant role of states in making their own decisions about things like marriage. While the court leaves the door open for a much greater federal role than the Constitution actually allows, in the big scheme of things, the court ended up making the correct decision. The federal government has no business defining marriage.”
Gay rights activists applauded the decision, but it doesn’t give them complete victory. Boudin points out that the decision also means states retain the right to exclude same-sex unions from their definition of marriage.
“To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”
Actually, onetenther is correct. The rules under which the feds operate to provide certain benefits ought rightly be within the exclusive discretion of the feds, so long as those rules do not abridge or limit the exclusive authority of the states or the people over powers not delegated to the feds.
Here, the denial of fed benefits does not interfere with the states’ powers to permit same sex marriage. People of the same sex can get married in the states that allow it, whether or not they receive certain federal benefits.
It is not inconsistent to have 2 different definitions of marriage for 2 different purposes.
@jeff2 DOMA is not just about handing out benefits. It creates a federal definition of marriage for any and every “federal purpose.” If Congress wants to limit a certain benefit to “marriages involving one man and one woman” within a piece of legislation, that is well and good. To create its own sweeping definition of marriage is something altogether different.
@jeff2 DOMA is not just about handing out benefits. It creates a federal definition of marriage for any and every “federal purpose.” If Congress wants to limit a certain benefit to “marriages involving one man and one woman” within a piece of legislation, that is well and good. To create its own sweeping definition of marriage is something altogether different. In essence, DOMA tells a legally married same-sex couple “no, you are not married.” It may seem like an exercise in semantics, but it think it is a subtle yet crucial distinction.
@MikeMaharrey-TenthAmendment There is really nothing crucial about it. It defines marriage for an entirely different purpose. It does not interfere with the states’ authority simply by stating, “For purposes of our internal laws concerning federal benefits, this is the definition we give to marriage.”
The only “affront” people should have about this practice is that they know there is a discriminatory policy in play. This is certainly true. It’s just like how I get a mortgage interest deduction, while renters do not. Yet, we both live in houses.
Now, if the married gays say they want federal benefits and ought to be entitled to them the same as any other married couple, then, that involves a federal policy decision at the federal level and has absolutely nothing to do with state’s rights. Some things the feds do were meant to stay at that level by design. This is one of them.
Where, under any state law, is there any authority for a state to have any involvement at all in terms of the federal processes that are employed to arrive at who receives federal benefits and who does not? It just doesn’t exist as far as I am aware, and I have never seen a state law argument to support any such proposition. I have only seen arguments based on federal law.
@MikeMaharrey-TenthAmendment Quick additional point. People just can’t seem to get their hands around the use of 2 different definitions for the same thing when different purposes are served. If one wants to know what an ellipse is, it includes circles. So, yes, you can call a circle an ellipse, even though the people who immediately see a circle will look at you a little funny.
What if the feds say, “These benefits shall be payable to schmozzledegooks. ‘Schmozzledegooks are defined as a combination of one man and one woman who are married?”
Do you think the gays will take that sort of shift easily and just say, “Well, okay, then. As long as it’s schmozzledegooks?” No way. Instead, they will say, “We have the right to be schmozzledegooks, too.” And then, states will get in the game and start giving their own definitions of what a schmozzledegook is.
@jeff2 You continue to miss the point. DOMA creates a federal definition of marriage – not just for benefits – but for all purposes. It does not have the authority to do this. States define marriage. When you get a marriage license, you get it from the state where you’re getting married, not the federal government. The state determines who can officiate, how old you have to be, whether you have adequately terminated any previous marriages you had, and so on. In that sense, your marital status is somewhat like a piece of property: federal laws or regulations frequently goes one way or another depending on whether you have it, but it uses state law to figure all that out.Like I said, if Congress wants to define eligibility for a benefit within a certain piece of legislation in a certain way – they are free to do this. But if they use the term “marriage” they are bound to EACH STATE’S definition of it because “marriage” is a state power. If the feds want to limit to to opposite sex partners, they should do that within a given piece of legislation. DOMA goes far beyond that. It creates a federal definition of marriage. Have you read the ruling?
@jeff2 Perhaps we could better solve the problem if the federal government got out of the benefit handing out business.
@MikeMaharrey-TenthAmendment The feds are not bound by a state’s definition of anything. What if Utah decided to define marriage as a lawful union between any man and a female of any species? Do you think the feds would have to say, “Well, gee. This is what Utah says, so I guess the sheep gets survivorship benefits?”
Just because Utah, or any state, decides to define something, has no impact whatsoever on what, if anything the feds want to define. If Georgia says, “By definition, grass includes only the species, “St. Augustine,” what would compel the feds to refrain from a law that says, “There shall be imposed a tariff on all grass that crosses state lines during the course of commerce. For purposes of this Act, ‘grass’ shall include palm trees and philodendrons.”
The problem you are having with this concept is that you think that states, in all cases, ought to control the feds. Both were actually supposed to be autonomous spheres.
@jeff2 Please don’t put words in my mouth. I do not think that “in all cases, ought to control the feds.” I think in terms of powers granted. I see your point. I just disagree . I think in terms of “does the Constitution delegate the federal government a power to define marriage?” No. It does not. As I have said twice now, Congress can define and restrict benefits within a given piece of legislation as it sees fit. It could stipulate that only people 5’5″ or taller get XYZ benefit. That is necessary and proper. If you have read much legislation, you know that they carefully define everything in a bill. Your grass definition is an fine example. A federal law placing a tariff on grass WOULD explicitly define what it meant by grass in that legislation. Taking the next step and passing a single law saying “in all cases this is what grass is” would be an overstep of federal power.DOMA creates a definition of “marriage” for EVERY federal action in one sweeping law, binding every future act of Congress to that definition. The intent isn’t simply to help define who gets benefits, it’s to create a national definition of marriage. We all know that – and if you’ve read the ruling, you will find the judges address this issue. Seriously, read the ruling. I think it clarifies my point.And you simply can’t look at the state and federal government as “autonomous spheres.” They overlap. So we always have to parse the issue of where does federal authority stop and where does state authority begin. I believe DOMA steps over that line into state authority. You obviously disagree, and I do think you make a valid case. So we will have to leave it at that. But I appreciate your well thought out argument.
@MikeMaharrey-TenthAmendment I would agree, if DOMA does anything to limit state authority. I don’t care much about the statute, to be honest. Maybe it does. But if it doesn’t, then, there’s no problem.
It doesn’t matter whether DOMA affects “everything federal” as long as it is only affecting things that are federal. I realize it’s not just “benefits” as we understand that term. However, when you get down to the details, what really is a “benefit?” Is it just welfare, food stamps, medical, etc.? What about government contracts? Certainly, people benefit from contracting with the feds. What about military service? Same thing. Basically, even under the most extreme Libertarian form of government, there will always be some benefit to be had by someone. That’s the nature of all governments. They have to carry on business at some level (which I agree should be less than it is now).
As to DOMA binding Congress to a definition, as long as it is a definition which operates only in the federal sphere, so be it, although I am not sure how Congress cannot amend the definition anytime it wants.
I do agree the whole thing was a political move by members of Congress to make their “statement” on the ethical and moral “repugnancy” of gay marriage. But still, it affects no state. It might express an “opinion” or a “sentiment” of the feds as far as states are concerned, but there seems to be nothing improper so long as that’s as far as it goes.
Just for the sake of making your point that the feds can do what they will, as far as people being 5′ 5″, etc., if they can do that, then, why not the same as regards what they want to consider a marriage?
If your goal, as a federal official, was to make sure that no federal benefits or any other form of federal transactions gave gay couples the same status as heterosexual couples, how would you write that statute in a way that would placate the gays? I used the example of creating a new definition (“schmozzledegooks”, above), but as you can see, no matter what you do, if the feds, acting solely within the federal arena, treat gay couples differently than heterosexual couples, it will never matter how you carve out the distinctions…. the gays will feel discriminated against.
So consider that if you acknowledge that it is permissible to discriminate in this regard at the federal level, how you would write a statute that would satisfy your concerns, such that you felt the feds were not using a definition to “lean” on states that allow gays to marry? I don’t think it can be done. My point is that if it ought to be permissible to do this at the federal level in some way, then, the states have no business coming in with their own definitions to try to alter the effects of federal laws.
It’s the chicken and the egg problem. Who was first with the definition? The feds or the states?
If the feds define it first, then, can the states come along with their alternate definitions and use those to bind the feds? If the states define it first, does that mean the feds are stuck with it?
I did not mean to try to put any words into your mouth. I just figured the natural reaction by state’s rights advocates is to find a state’s rights issue with things they don’t particularly like. I do that, too and have found myself doing it.
One thing we agree upon is this: Even with disagreements among state’s rights advocates as to details like this DOMA issue, I can accept the disagreement and be quite content with a little error in FAVOR of state’s rights for a change. The feds have gone nuts! Even states are going nuts, but at least it would be more tolerable at the state level, where political and social views of state officials are more likely to express local sentiment.
@MikeMaharrey-TenthAmendment OT, but here’s an interesting issue:
As I understand the Sheriff Mack case, the SCt held that while Congress had the authority to enact the Brady Bill, it did not have the authority to commandeer the state and local governments to require them to assist the feds in enforcing the federal law.
So….. under that principle, why would state and local governments be required to withhold federal taxes from their employees’ paychecks? Wouldn’t the same rationale dictate that the feds could be limited to going about the collection process themselves?
@jeff2 You’ve about got me convinced on this. Insofar as a federal definition doesn’t intrude on a state power. In other words, it only applies to legitimate federal purposes. Maybe. I’m still uncomfortable with an overriding federal marriage definition. And I still think you can make that marriage defining is outside of the fed power. But necessary and proper – maybe. Tough one.From a purely philosophical standpoint, the real problem is that the government has its nose deeply imbedded in what is generally a religious institution. Good conversation!
@jeff2 I think that is a damn good point! The logic seems to follow. But could you make a case that requiring the states to collect said income tax is necessary and proper under the 16th Amendment? I’ll have to cypher on that.
There have been a few bills introduced here and there that would have the states collect taxes and only send the amount of money they calculate is for legitimate constitutional purposes on to D.C. Kind of a fun concept, but not very practical.
@MikeMaharrey-TenthAmendment If the power is contained implicitly within the necessary and proper clause, then the Sheriff Mack case would not have turned out as it did. Certainly, we have to presume the SCt was aware of the necessary and proper clause when it issued the Sheriff Mack opinion in favor of the Sheriff. So, if the necessary and proper clause implicitly permits the feds to commandeer state and local governments to carry out federal initiatives, then, the SCt decided the Sheriff Mack case wrongly.
Although the N & P clause does not expressly rule out the commandeering of state and local governments by the feds, I think it must implicitly rule it out. Otherwise, the Constitutional framework, which expressly provides for a duality of governments, is for all practical purposes, defeated.
@MikeMaharrey-TenthAmendment I just re-read Printz v. U.S., and the SCt did in fact address the N&P clause argument. It held the clause cannot be construed in a manner that would defeat the design of dual sovereignty contemplated by the Constitution. It held that federal acts that commandeer state and local governments to do federal work does not pass the “Proper” element of the N&P clause.
Here is the language used by the Court (link to follow):
The dissent of course resorts to the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause. It reasons, post, at 3-5, that the power to regulate the sale of handguns under the Commerce Clause, coupled with the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” Art. I, §8, conclusively establishes the Brady Act’s constitutional validity, because the Tenth Amendment imposes no limitations on the exercise of delegated powers but merely prohibits the exercise of powers “not delegated to the United States.” What destroys the dissent’s Necessary and Proper Clause argument, however, is not the Tenth Amendment but the Necessary and Proper Clause itself. [n.13] When a “La[w] . . . for carrying into Execution” the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19-20, it is not a “La[w] . . . proper for carrying into Execution the Commerce Clause,” and is thus, in the words of The Federalist, “merely [an] ac[t] of usurpation” which “deserve[s] to be treated as such.” The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993). We in fact answered the dissent’s Necessary and Proper Clause argument in New York: “[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.” 505 U. S., at 166.
Finally, here is the concluding paragraph in Printz:
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.
http://www.law.cornell.edu/supct/html/95-1478.ZO.html
Wrong. This only applies to the federal government and determining what benefits they can give to people. It does not interfere with states who wish to recognize this and give benefits to it.
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Did you see the part about department or office thereof?
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Now do you see the part about department or bureaus and agencies of the United States? They are within there powers to tell what their agencies can do and they happen to have unlimited power over those agencies unless you are arguing that states have such a power to determine how federal bureaus behave?
@onetenther You are misapplying the necessary and proper power. Defining marriage as a man and a woman is not “necessary or proper” for handing out benefits. When the federal government decides to provide benefits based on “marriage” it implicitly accepts each states’ definition of what marriage is, because that is a power left to the state. The state defines marriage and IF the fed chooses to bestow some benefit based on marriage, it must accept each state’s pool of married people. If a spouse dies – what difference does it make to the federal government if that survivor benefit goes to a man that was married to a man or a man that was married to a woman? From a practical standpoint, not a bit. A benefit is a benefit. That was the court’s point in this ruling. There is no reason for the federal government to redefine a state’s definition of marriage. The exists no overriding federal concern. It also creates an “equal protection” issue. You seem to accept that Mass. has the right to recognize a same-sex union. Well, it’s either a valid marriage or it is not. If it is – then it gets the same protection under law as a marriage between a man and a woman. To deny a same sex couple certain federal benefits denies them equal protection. You are saying they are married, but they are REALLY less married than the man and woman who get these benefits. So, IF a state has the power to define marriage, it follows that the feds must recognize that marriage as valid as well. If the feds can say – well, you can get married, but we aren’t going to recognize it, then the state doesn’t really have the power to define marriage, now does it? You should read the entire ruling. I linked to it. The judge makes basically this very argument.