Gay marriage and federalism

Followers of this blog have no doubt read the timely and interesting piece by my co-author on the blockbuster decision on gay marriage by the 2d Circuit Court in Windsor v. US.  The elevation of gay rights as an area subject to the same level of legal scrutiny as gender discrimination makes it less likely that laws restricting gay rights will be upheld, and that, as my colleague notes, is a real game changer.
There will no doubt be a lot of discussion about the case and legal pundits are now all but certain that this issue will have to be addressed by the Supreme Court.   I will just add an observation about what I see as another important issue in the case: Federalism.


As Judge Jacobs notes in his opinion in Windsor, one of the questions in this case involves the ability of Congress to enact a federal standard for the definition of marriage.  This is an especially important issue since the “Regulation of marriage is ‘an area that has long been regarded as a virtually exclusive province of the States.'” [1] Judge Jacobs goes on to note: “It has for very long been settled that ‘[t]he State… has the absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.'”


One of the purposes used at argument to justify DOMA was that the federal government has “’unique federal interests’ in…a consistent federal definition of marriage.”  As Judge Jacobs notes, this justification raises questions because federal law has always recognized marriage as the “virtually exclusive” province of state government. [2]  After discussions of the “unprecedented intrusion” into state regulation, the failure of DOMA to address other diverse restrictions and regulations of marriage among states, and the “inefficiencies” created, the court concluded that, “Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.”


If Windsor is accepted by the Supreme Court and the decision to strike down DOMA is upheld, one can imagine that there will be relief amongst many who have been adversely affected by this federal policy.  It’s important not to forget that the impact of that decision would still leave the definition of marriage to the states, and leaving the definition of marriage to the states may not be an unalloyed blessing.  As noted in the dissent to Windsor, many states have adopted restrictive definitions of marriage.   Those restrictive definitions would determine federal benefits for each state’s residents if DOMA were to be struck down.  Thus, the significance of our federal system would then be seen in the challenges to state level restrictions on gay marriage and the standard that would be used by the Court in deciding those cases (cue Hollingsworth v. Perry and cases like it here).


When this occurs, will the fight over gay marriage look like the struggle for progressive labor regulations during the early 20th century?  That is, will gay marriage become an issue that can be regulated by neither the federal government, because it is a matter for the states, nor state governments, because the laws would be an unconstitutional violation of an important individual liberty?

[2] Windsor  Sec. 4 A at 8.

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Filed under Discrimination, Federalism

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