How Federalism Could Doom DOMA, But Save State Bans

 
Roberta Kaplan, attorney for plaintiff Edith Windsor, addresses the Supreme Court on the Defense of Marriage Act. The justices were skeptical about the federal law on same-sex marriage. (AP)

If the Supreme Court strikes down the federal Defense of Marriage Act, one of the key arguments driving that result could also preserve similar bans on gay marriage in more than three dozen states for years to come.

That pivotal argument is federalism versus states’ rights. It is at the heart of what led nine states and the District of Columbia to allow same-sex marriage in the first place – actions that ultimately led to the legal challenge over the Defense of Marriage Act, known as DOMA.

Hewing closely to the principle of states’ rights could lead the court to leave the issue to the states for the foreseeable future, without the strong constitutional ruling that advocates and liberals hoped for when the court agreed to hear the issue.

Without a strong ruling, it could be years before same-sex couples nationwide secure equal footing with other married couples, as states with bans of their own stress their right to regulate and define marriage as they see fit.

In arguments this week, a majority of the justices voiced skepticism about the federal law that has barred the federal government from recognizing same-sex marriages since 1996. It has left thousands of same-sex couples without access to federal programs, benefits and tax preferences that are afforded other married couples. The number of Americans affected has grown as more states allow same-sex marriage.

But where the four liberal members of the court stressed the discrimination of the federal law – Justice Elena Kagan  even suggested Congress was motivated “by dislike, by fear, (and) by animus” – the crucial swing vote of Justice Anthony Kennedy  seemed to focus more on states’ rights and federalism. Kennedy, known for being wary of separation of powers, pursued that in questioning former Solicitor General Paul Clement, who was defending the law.

“The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage,” Kennedy said. “You are at real risk of running in conflict with what has always been thought to be the essence of state police power, which is to regulate marriage, divorce and custody.”

Kennedy’s statements during arguments Wednesday were seen as key evidence that DOMA is in jeopardy. He also at times seemed concerned about discrimination, most pointedly when he invoked the 40,000 children in California with same-sex parents subject to that state’s Proposition 8 ban, which the court considered Tuesday.

“The voice of those children is important, don’t you think?” he asked.

But he was clearly more motivated by federalism concerns, and he was equally vocal about worries the court could go too far in imposing same-sex marriage on the country. He worried about heading into “uncharted waters.” And overall, Kennedy’s posture Tuesday was seen as key evidence that the court wasn’t likely to reach a broad ruling and declare all same-sex marriage bans unconstitutional.

That leaves open the possibility that the court could strike a tempered result. First, it would allow same-sex marriage in California and say the federal government must recognize legally performed marriages from states that allow them. But it would do nothing to alter the law in the many states that ban and refuse to recognize such unions.

In that case, it’s possible a same-sex couple legally married in one state would not be recognized in another state that prohibits it.

More to the point, the result would be a blow to the principles of equality that underpin the pro-same-sex marriage movement. It’s a concern some liberals voiced when the Obama administration refused argue for a nationwide right to same-sex marriage before the court.

“We’re not prepared to close the door,” Solicitor General Donald Verrilli said at one point Tuesday, even as he denounced California’s ban – and a day later, DOMA – as unconstitutional.

That could leave to another day, and another lawsuit, the question of whether a state can refuse to recognize a same-sex marriage performed elsewhere. It’s likely that would arouse similar states’ rights arguments that were on display this week at the court, and it’s a possibility that wasn’t lost on the justices. 

“Would you not have essentially the same equal protect argument there that you have now?” Justice Samuel Alito asked of that hypothetical situation.

The law, as it stands now, is at best muddled. Ultimately, the issue could spawn another court battle. Generally, states are bound by law to recognize the findings of another state’s courts on a particular matter – for instance, a court’s recognition of adoption, said Steven Schwinn , a professor at the John Marshall Law School in Chicago. But whether states can be forced to recognize another state’s law – for tax purposes, for example – is more of an open question.

“It's almost certain that one state would have to give full faith and credit to a state court judgment of another state that respects a same-sex marriage in the second state,” Schwinn said. “On the other hand, it's not necessarily true that one state would have to give full faith and credit to a state law of another state that respects a same-sex marriage in the second state.”

 
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