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Waiting for the Court: The Coming Arguments on Marriage

by Hadley Arkes
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The middle of March and the lottery is on at the Supreme Court of the United States: In another week the Court will be taking two days to hear oral arguments on the issue of marriage, and the volume of demand for seats in the courtroom has been so vast that it has run beyond the capacity of the lawyers and insiders to bestow favors on friends. Hence the resort to a lottery. I'll be at the Court on Tuesday, March 26th, for Hollingsworth v. Perry, the appeal over Proposition 8 in California. On Wednesday, the 27th, the Court will hear U.S v. Windsor, testing one part of the Defense of Marriage Act of 1996.

And yet both cases involve the same issue: the question of the logic behind the "equal protection of the laws," and that question in turn will depend on the answer to the question of "what is marriage?" In the case from California the Supreme Court from that State had found the laws on marriage unconstitutional because they had foreclosed the marriage of two people of the same sex. The voters of California overruled that decision in a referendum (Proposition 8). The issue was appealed then in the federal courts, invoking the "equal protection of the laws": that the laws barring couples of the same sex from marriage constituted a "discrimination" that could find no ground of justification. In the case springing from DOMA a woman surviving the death of her female partner was denied the benefits in taxation that would flow to a bereaved spouse. Edie Windsor was hit with a federal estate tax of $363,000 because federal law would not recognize her as the spouse of her late partner, Thea Spyer. For the rules on federal taxes would be governed by that provision in DOMA in which the Congress simply stipulated that:

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.

Since Congress alone can legislate the federal code, there can be little question that Congress alone has the authority to determine the meaning of the words used in that code, including "marriage." Still, the argument has been made here as well that it is discriminatory for Congress to recognize, as a marriage, only the legal union of a man and woman. But the Equal Protection Clause appears only in the Fourteenth Amendment, which was addressed to the action of States, not the federal government ("No State shall ... deny to any person within its jurisdiction the equal protection of the laws"). That was the clause invoked by the Court when it struck down racial segregation in public schools in Brown v. Board of Education. But that same day the Court could not invoke that same clause in a companion case, striking down the same segregation in the schools of the District of Columbia (Bolling v Sharpe). For the District of Columbia is not a State. The justices then mumbled something to the effect that the Due Process of the Fifth Amendment essentially contained the logic of the equal protection clause.

And so the cases on marriage, cast in different forms, will involve essentially the same question: whether the barring of same-sex couples from marriage is comparable to the barring of marriage to a couple containing members of different races; that it is an inequality of treatment that cannot be justified. In the case of barring couples on the basis of race (Loving v Virginia) the question was whether race was at all relevant to that complementary relation of a man and woman that marked the defining telos or meaning of sexuality, the very reason in nature that there are, and will always be, men and women: the begetting of children. But with couples of the same sex there is the question of whether marriage itself must now be redefined in its character and purpose in order to accommodate this novel form of two men or two women. On this, the main question, I've written and spoken at length, but I'll put all of that aside here, for it needs to be argued fully. [See "The Family and the Laws," in George and Elshtain (eds) The Meaning of Marriage (Witherspoon Institute, 2006).]


The cases coming before the Court could be deflected from a judgment on the main issues—the judges could seek an artful way of dodging a major pronouncement here—by focusing on the matter of "standing." The justices have pointedly insisted that the issue of standing be given a critical place in the briefs and oral arguments in both cases. In the case on DOMA the matter was complicated by the fact that the Executive branch, under President Obama, did not choose to defend the constitutionality of this federal statute when it was challenged successfully in a federal court. A "bipartisan" group of Congressman came forth, hiring their own counsel to defend the statute that Congress had enacted. This kind of arrangement must ever pose a serious question under the scheme of our government. For Congress, as a coordinate branch under the Constitution, makes its position known by enacting statutes. It is not a mere "litigant" presenting itself before a judicial tribunal, implying that among the branches of the government the Court is even more sovereign yet. Still, we've seen this gambit before: In the late 70's Senator Goldwater brought suit to contest Jimmy Carter's decision to nullify the long-standing treaty with Taiwan in order to clear the way for relations with the Communist regime in China. That challenge was viewed at the time as a dispute between the political branches and not fit for a judicial resolution. The same judgment may arise in this case, except that the Court itself recognized the portentous implications as it framed the question for U.S v. Windsor: "Whether the Executive branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case."

Somehow one doubts that the Court is willing to let itself get boxed out in this way from one of the most momentous questions to arise in our constitutional law. Nor does it figure that the Court was willing to put these cases on the docket—and assign two full days to the argument—if it were unwilling to take jurisdiction and bring forth a judgment.

What seems to be left out of the problem, cast before the Court, is that other principal section of DOMA, the one that brought forth DOMA in the first place. It is curious that on the eve of the arguments before the Court people may be forgetting just what the crisis was that stirred a band of writers, lawyers, and congressman to shape this rather modest measure as a remedy. We have seen recently some arguments offered even by conservative and libertarian professors of law, raising questions about the constitutionality of DOMA. Those arguments depend on a clear, unyielding division between the functions of the national and local governments. The late Morton Grodzins showed, many years ago, that a division of that tightness has never really held, even from the first days of this federal republic. But whatever strengths or defects may be in those arguments, there is a risk of losing sight of the major constitutional problem that DOMA was brought forth to avert.

The crisis sprang upon us in 1993, when the Supreme Court of Hawaii invoked the Equal Rights Amendment of that State and confirmed what the opponents of the national ERA had argued in the 1970's: that a constitutional provision barring discriminations based on sex would be used to strike down the traditional laws on marriage and install same-sex marriage. This case of Baehr v. Lewin administered a jolt to the people of Hawaii and spurred moves in the legislature to counter that decision. Eventually these moves culminated in the passage of a constitutional amendment to reserve marriage as a relation between a man and a woman.

But with the decision hanging out there in Hawaii, there was the serious concern that one State could install same-sex and then go on to "nationalize" same-sex marriage for the country as a whole on the basis of the Full Faith and Credit Clause (Art. IV, Sec 1). That is the clause leading us to expect that the marriage validly performed in one State would be respected in another. Already we were hearing of ads placed in gay newspapers: Come to Hawaii for a vacation, get married, and take your marriage back home to Connecticut. That decision in Hawaii could be taken then as the first current carrying the problem. The second one hit in 1995 with the decision of the U.S. Supreme Court in Romer v. Evans. The reigning understanding has been that a State could refuse to credit a marriage coming in from another State if the receiving State had, incorporated in its laws, an objection to this form of marriage. We saw this at work of course with interracial marriages. But now the Court, in Romer, was knocking out that prop.

The voters of Colorado had amended their Constitution to hold that

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

The move was meant to undercut those laws enacted in different cities to bar discriminations against gays and lesbians. Gays and lesbians were not put beyond the protection of the laws (as Justice Scalia pointed out). They were just not to be treated as "victims" on the same plane as the victims recognized in the other statutes dealing with discrimination, say, on the basis of race, religion, ethnicity, or sex. To put it another way, people would be left free to honor their own judgments about the morality of the homosexual life in their private enclaves. If people wished to have a gay bar, in which straights or even women were not welcome, they would be free to have them. And at the same time, people would not be threatened with penalties if they gave pamphlets on psychotherapy to their gay employees, or refused to rent rooms in their houses to homosexual couples.

With Justice Kennedy writing, the Supreme Court struck down that move by the voters in Colorado to amend their constitution. The decisive line in his opinion would carry through to Lawrence v. Texas in 2003, and provide the very ground of the challenge now to the Defense of Marriage Act. The key line was that any objection to the homosexual life could be explained only as a result of an irrational "animus" or blind hatred. In other words, it was no longer tenable for a State to incorporate in its laws a moral objection to the homosexual life. And therefore—as the argument will run today—any refusal on the part of the State to credit a same-sex marriage coming in from another State would have to be regarded as based on an irrational animus with no "rational" ground to support it.

And that is what brought forth DOMA. For some of us could see, as Edmund Burke would say, "a hurricane in a cloud no bigger than a hand at the very edge of the horizon." We could see that something larger was building. We wanted the Congress to take up that mandate again of the political branches in giving a lead to the courts on a constitutional matter. After all, the matter became, inescapably, a "federal" matter when litigants would come into federal courts, invoking the Full Faith and Credit Clause of the Constitution. They depended on the federal Constitution to spread same-sex marriage to other States, and so the question would have to fall to the institutions that could pronounce on the meaning of the Constitution and the federal laws.

Congress could pronounce on the meaning of "marriage" in the federal code, but it could also do more. As a coordinate branch of the federal government, the Congress could weigh in and seek to shore up the rightful authority of a State, under the Full, Faith and Credit Clause, to preserve marriage solely as a relation between one man and one woman. Senator Ted Cruz recently remarked on a comment made by a Democratic colleague in the Senate Committee on the Judiciary: that the legislative branch is confined to the task of legislating, while the judgment on the "constitutionality" of what it legislates is the sole province of the courts. That judgment could hardly be more wrong, as some of us sought to explain in the hearings over the Defense of Marriage Act. The answer here ran back to Marbury v. Madison: Chief Justice Marshall made the telling point that if a statute could supersede a provision in the Constitution, the Constitution would lose its standing as a "fundamental law" and a control on the legislative power. The Constitution would be put on the same plane as an ordinary statute, which may be superseded by any later statute. And so, as Marshall observed:

if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

It was the "judicial duty" to confront that problem in the context of treating a "case in controversy," the distinct work of courts. But the fundamental logical problem—the problem of recognizing the logical priority of the fundamental law in comparison with an ordinary statute—that problem would remain for any officer under the Constitution. It would be the same responsibility for Presidents and members of Congress. If Congress and the President were faced with a statute that conscripted into the military service only members of one race, they would not be confined to the question of "utility"—whether the measure would "work." They too, no less than judges, would be obliged to consider whether this measure coming under their hands was compatible with the fundamental law of the Constitution.

That was precisely the understanding that we drew upon when we encouraged the Congress here, in DOMA, to put its own judgment on the record. Congressman Barney Frank said at the hearings that he regarded this venture as "unconstitutional." I told him that he made our very point: that it was indeed his responsibility as a member of Congress to cast judgments on the constitutionality of those measures that came under his hand. And by the Congress enacting this measure, it was casting a judgment on the constitutionality of a State refusing to credit same-sex marriage; a judgment that would have a claim to be regarded seriously by the courts.


But we need to recall also what a moderate measure this was on the matter of preserving federalism. Norman Podhoretz chided us at the time for not being bold enough to go further and bar same-sex marriage for the country as a whole. We wanted to do that as a constitutional amendment—or make our point politically just by introducing that Amendment and letting it make its impression as it began to gain votes in the States. But as Lynn Wardle, at the law school at Brigham Young University would explain, DOMA was quite limited, and what it did was uphold this feature of federalism: It barred one State from imposing its policy indirectly on all of the other States. At the same time it left the separate States free to shape their own policy on this controversial question. If a State wished to provide for same-sex marriage, it could do that. But what it could not do is provide same-sex marriages that would have to be accepted all over the country, in all jurisdictions.

This critical part of DOMA is not the focus of the Court in the oral argument coming up. And yet, it is hard to see how it would be unaffected if the Court came to the judgment that the preservation of marriage as we have known it depends on nothing more than an irrational "animus" toward the homosexual life. In Lawrence v. Texas, Justice Kennedy sought to deny that the premises he had been putting in place, in Lawrence and in Romer, entailed any acceptance of homosexual marriage. He insisted that the decision in Lawrence "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." This is the point at which Justice Scalia famously said, "Do not believe it." We have judges now who profess to see nothing more than blind prejudice in a man who bears moral reservations about the homosexual life. And a judge who sees through that lens would easily come to see, behind the rejection of same-sex marriage, a moral recoil from gay and lesbian relations. The traditional laws on marriage could be read then as rejecting the homosexual relation as a legitimate sexual relation that could satisfy the understanding of a legitimate marriage.

If the Court comes to that judgment, the portion of DOMA dealing with federalism and the Full Faith and Credit Clause may be rendered quite beside the point. For if it becomes untenable to conceive of marriage, in the laws, as a legal commitment of one man and one woman, the Congress could have no ground for encouraging the courts to respect that understanding of marriage when a State seeks to preserve it.

But there have been some other, serious arguments put forth on this matter of federalism in DOMA. Engaging friends of ours have put forth arguments that are at least interesting, and for all we know, may also be true. In any case, a serious argument deserves to be heard and seriously measured. But what I hope we would not lose from sight is the awareness of that purpose that brought forth DOMA. And what our friends should be obliged to tell us is this:  If DOMA goes, what in fact keeps one  State from nationalizing same-sex marriage?   The matter cannot be left any longer entirely in the hands of the States because the Supreme Court, this branch of the federal government, has already intervened with Romer v. Evans and undercut the authority of the State to refuse to accept the same-sex marriages coming in from other places.  Behind all of these arguments is the ultimate question of whether we are seeking to preserve marriage or whether we are willing to treat with indifference its dismantling by the courts. If DOMA is faulty as an instrument, would a measure more deftly drawn accomplish the same end in a more defensible way? If marriage as we know it cannot be defended without running afoul of the Constitution, does that mark, for the critics, a serious moral fault in marriage itself? Or do they earnestly think that something in the Constitution itself inhibits the defense of marriage?

Hadley Arkes is the Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence