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Faculty Commentary

Justice Alito: Right and Wrong

Baker_Katharine thumbBy Katharine Baker

As someone who has spent considerable amount of time in the last two years working on amicus briefs in favor of yesterday’s Supreme Court decision striking down Section 3 of the Defense of Marriage Act, I will start by saying that—oddly enough—I think Justice Alito’s dissent in United States v. Windsor got one thing absolutely right: the equal protection framework “is ill suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage, which fundamentally turn on what marriage is.” Alito Dissent at 10-11. So instead of criticizing the Supreme Court for not declaring sexual orientation a protected class and thereby all but requiring immediate national recognition of marriage for same sex couples, I will praise the Court for providing a somewhat more muddled rationale.

Indeed, today’s Supreme Court majority in Windsor did as the First Circuit did in its DOMA case, Gill v. HSS: It combined a dose of federalism, with a tablespoon of equal protection and a teaspoon of due process, mixed it together and rationally and sensibly concluded that Congress violated constitutional principles when it limited federal recognition of marital status to marriages between a man and a woman. The Gill court was actually a bit more transparent than Justice Kennedy. It acknowledged that the federalism concerns necessitated a kind of “rational basis plus” review. That “rational basis plus” review is essentially what the majority in Windsor used in striking down Section 3.

Equal protection doctrine and equal protection doctrine alone is not well-suited to resolve the issues presented by same sex marriage because, as I’ve written elsewhere (see The Stories of Marriage), gay men and lesbians only have an equality right to marriage if marriage is not an inherently gendered institution. I, along with many others, do not believe that marriage is an inherently gendered institution. I, for one, would not have gotten married myself if I believed it was an inherently gendered institution. But everyone—on all sides of this question—is well aware that there is still significant social discord on this subject. Many people today, many more people 10 years ago, and almost everybody 50 years ago thought that marriage was an inherently gendered institution. Thus, the real question, as Justice Alito suggested, is who should decide how to define marriage.

The majority and Justice Alito seem to agree that it is the states, not the federal government, that should define marriage in times of social discord like this. This position is supported not only by basic federalism principles but by an exceedingly strong historical norm of federal deference to state determinations of family status. As the Family Law Professors’ amicus brief argued in Windsor, until DOMA, the federal government had always relied on state determinations of marital status as long as there was a state sovereign capable of granting—or not—that status. Regardless of whether Congress has authority to abrogate marital status for one whole subset married couples for all federal purposes, it had never, before DOMA, done so.

Where Justice Alito leaves the majority is in his belief that DOMA does not disrupt state conferral of marital status because the refusal of the federal government to recognize same sex marriages does not keep same sex couples from getting married in those states that recognize same sex marriage. What Justice Alito gets profoundly wrong is how much it was Section 3 of DOMA, not the issuance of marriage licenses to same sex couples, that really disrupted the institution of marriage. Prior to DOMA, having married status had always entailed an understanding that one was married for all purposes, including federal purposes, for all time, unless one secured termination of that married status from the state. DOMA disrupted and bifurcated this understanding of marriage such that there became such thing as being married for state or federal purposes. They were no longer the same thing. DOMA created two kinds of marital status when before there had only been one.

The dissenters were apparently untroubled by this disruption of marital status, but I wonder if they spent much time thinking about what it might actually feel like. Imagine if what Congress had done in DOMA was not define marriage as between a man and woman for all federal purposes, but had instead said “those states that are now or may ever grant marriage licenses to same sex couples have a warped understanding of what marriage is. We know what marriage is and states that grant marriage licenses to same sex couples do not. Those states that grant marriage licenses to same sex couples do not understand what marriage is. Therefore, we are not going to recognize marriages from those states.” That, in my opinion, would have been the more honest way to “protect” the institution of marriage that the proponents of DOMA apparently wanted to protect.

Because Congress declared that the people of  New York  (and Vermont and Minnesota and Maine and . . .) were wrong in their understanding of what marriage was, Congress should not have honored marital determinations made by those states. What that would have meant, of course, is that tens of thousands of straight couples would have been subject to the same bifurcated marital status that same sex couples were. Justice Alito might soon have found his federal marital status stripped because his home state of New Jersey is on its way to granting same sex marriage licenses. His spouse would be dropped from his health insurance (if she was on it). Members of the Supreme Court who lived in Maryland or D.C. might have felt oddly vulnerable because they were never quite certain of what it meant to be married, where. Indeed, my guess is that for most straight married people, having their marital status stripped at the federal level would feel much more disruptive to their understanding of marriage than would learning that the lesbian couple next door can collect on each other’s Social Security account.

It is because DOMA itself was so disruptive to the traditional treatment of marriage that the espoused (conservative) reasons for DOMA did not ring true. That atonality was partly attributable to respecting traditional state prerogatives, partly about treating married couples equally, and partly about respecting marriage as an esteemed, but always evolving, institution.

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