Foggy Bottom Line

Last week a Federal Judge ruled that Congress has no power to create a separate class of married couples for the purpose of regulating receipt of Federal employment benefits, and ruled Section  3 of the Defense of Marriage Act unconstitutional.  In two separate cases hinging on two different issues, the Court ruled both that Congress may not create two classes of marriage for the purposes of eligibility for Federal employment benefits because such an Act violates the Equal Protection Clause of the Fifth Amendment, and that the Tenth Amendment prohibits Federal regulation of State power to define lawful marriage.

Gill v. Office of Personnel Management:

In the wake of DOMA, it is only sexual orientation that differentiates a married couple
entitled to federal marriage-based benefits from one not so entitled. And this court can conceive
of no way in which such a difference might be relevant to the provision of the benefits at issue.
By premising eligibility for these benefits on marital status in the first instance, the federal
government signals to this court that the relevant distinction to be drawn is between married
individuals and unmarried individuals. To further divide the class of married individuals into those
with spouses of the same sex and those with spouses of the opposite sex is to create a distinction
without meaning. And where, as here, “there is no reason to believe that the disadvantaged class
is different, in relevant respects” from a similarly situated class, this court may conclude that it is
only irrational prejudice that motivates the challenged classification.149 As irrational prejudice
plainly never constitutes a legitimate government interest, this court must hold that Section 3 of
DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth
Amendment to the United States Constitution. (Emphasis mine.)

Here the Judge rightly concluded that same-sex marriage has no effect on heterosexual marriage, and therefore the Government has no rational basis for classifying marriage other than the historical method: reliance on the states for definition.

Massachusetts v. Health and Human Services:

This court has determined that it is clearly within the authority of the Commonwealth
to recognize same-sex marriages among its residents, and to afford those individuals in same-sex
marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital
status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the
firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that
reason, the statute is invalid.

Massachusetts sued to force the Federal Government to recognize the same-sex married couples married in that state for purposes of Medicare, Medicaid, and spousal burial by the Veteran’s Administration.  Since the Constitution gives Congress no power to regulate marriage, and the Federal Government has historically accepted the definitions of marriage constructed by states (including during the age of anti-miscegenation laws), the court found Section 3 of DOMA in violation of the Tenth Amendment.

Jack Balkin (Balkinization) and Dale Carpenter (The Volokh Conspiracy) analyze the decisions much more effectively than I ever could.  But it raises questions about Congressional power that may confound some conservatives.

Congress either has the power to define marriage in this way, or it doesn’t.  Since the Constitution says nothing on the subject, such a power if it exists must rest in broader interpretation of the Commerce Clause or some other general power.  This could force conservatives into competing talking points, as they simultaneously argue that Congress has no power to regulate health care by mandating coverage, but may regulate marriage by defining it for the States.

Last night I heard Maggie Gallagher on the local Christian radio station complaining that the Obama Justice Department intentionally made a weak argument in defense of the law, forcing the judge to rule as he did because DOJ did not use the arguments Congress used to support original passage of the law (Professor Carpenter covers this).  She further suggested that the Obama Administration might refuse to appeal the decision, letting it stand, and called on traditionalists to agitate against the judge, the decision, the Obama Justice Department, and gay marriage.

Ms. Gallagher should certainly argue for her preferred policy choices.  But her rhetoric supports the judges observation that her opposition to marriage for homosexuals has more to do with “irrational prejudice” than with protecting Christian traditions–which they are of course free to continue, however this turns out.

Tags: Gay Marriage, Homosexuality, Marriage