Federalism and the authority of the states to define marriage

The twin decisions in United States v. Windsor and Hollingsworth v. Perry share an unexpected unifying theme – state sovereignty.  In Windsor, the Court explains that because the “definition and regulation of marriage” is “within the authority and realm of the separate States,” a federal definition of marriage that creates “two contradictory marriage regimes within the same State” must fall.  Congress “interfered” with “state sovereign choices” about who may be married by creating its own definition, relegating one set of marriages – same-sex marriages – to the “second-tier,” making them “unequal.”  In Hollingsworth, the Court rejects the standing of private parties to defend the constitutionality of a state statute where “state officials have chosen not to.” On their face, as holdings, these decisions respect the principles of federalism, honoring the exclusive authority of the states to define and to defend marriage.

But there is a second theme that is present in the Windsor decision, one that may be used to argue against the sovereignty of the states that maintain the traditional view of marriage.  After investing seven pages in a defense of the state’s governance over marriage, Justice Kennedy describes why he believes the Defense of Marriage Act harms same-sex marriage.  This is the rub.  What does this analysis mean for states that define marriage as between one man and one woman?  Will the views of the people of the thirty-six states that retain a traditional definition of marriage be treated with dignity and respect?  Courts will test the arguments these states have marshaled to defend the legitimacy and rationality of traditional marriage against Justice Kennedy’s list of harms.  And on this point Chief Justice Roberts and Justice Scalia debated in their dissents about whether Windsor already answered the question.  But because the Court did not address the rationales supporting traditional marriage, there is no reason to believe that Windsor rejected them.  Rather, the principles in Windsor of respect for state sovereignty and the authority of the people of the states to define marriage support the conclusion that the Court will affirm the constitutionality of those states that have reaffirmed the historic understanding of marriage – the union of one man and one woman.

1. 1.             State sovereignty and marriage

The holdings of Windsor and Perry are friendly to state sovereignty and the role of the states in defending their laws.  Windsor repeats again and again the importance of the role of the state in regulating marriage, noting specifically the fact that the State of New York’s decision to expand the definition to same-sex couples is “central” to the resolution of DOMA’s constitutionality.  The Court does not address the substantive question whether same-sex couples are the same as opposite-sex couples, but starts from the premise that New York has resolved this question by conferring the “dignity” of marriage to same-sex partners, an election by the State to treat these relationships as “alike.”  The Court does not evaluate this conclusion, but recognizes that this is the “exercise of [the states’] sovereign power.”

Never does the Court examine the arguments advanced in support of traditional marriage.  In his dissent, Justice Alito explains that there are “two competing views of marriage”:  the “traditional” view and the “consent-based” view.  In the traditional view, marriage is reserved to persons of the opposite sex because of the ability of the relationship to produce children, creating a “structure that supports child rearing.” In contrast, for the consent-based view, marriage is primarily defined as “the solemnization of mutual commitment . . . between two persons” where there is no reason to limit to persons of the opposite sex.  Only the dissents examine the substantive issue of marriage, and in each, they conclude that this is a matter for the people to decide, not the courts.

Rather than examine the rationales for the DOMA definition, the Court in Windsor relied on New York’s conclusion to adopt the expanded definition because it “reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” In other words, because the State of New York reached this conclusion, the Congress was in no position to gainsay it.  This deference to the community’s considered perspective could be seen as rational-basis review, requiring Congress to stay out of state decisions.   The suggestion is, of course, that the states who have decided to retain the traditional definition of marriage would be equally entitled to respect for their decisions.

The same federalism theme permeates the conclusion that Congress violated the Fifth Amendment by attempting through DOMA to stop the states from expanding their definitions of marriage.  The Court concluded that the “essence” of DOMA was its attempt to “interfer[e]” with reasoned decisions of the states to confer this “equal dignity” of same-sex couples as married couples.  DOMA therefore fell because its effect was to make a “subset of state-sanctioned marriages . . . unequal.”  Thus, the effort of the federal government to create a uniform definition for all of its agencies and for more than a thousand federal laws must yield to state definitions because the issue of domestic relations is within the states’ traditional authority.  The point is that what the states have made equal in this area, the Congress cannot make unequal.  This decision in favor of state sovereignty overturns a decision by Congress, thus treating state decisions on marriage as controlling.  This result would seemingly obtain regardless of the decision the state reached on the nature of marriage.

The decision in Hollingsworth similarly underscores the role of the state in defending marriage.  If the state elects not to defend the constitutionality of its marriage statute, no private party may step in to defend it.  In this way, only governmental actors with the responsibility to enforce the law are in a position to defend the constitutionality of a law, including laws on marriage.

1. 2.             Windsor and state laws on marriage

Windsor’s analysis about how DOMA harmed same-sex couples and their children may be cited by those who seek to challenge the laws of states that have adopted the traditional definition of marriage.  The Court did not examine, however, the arguments supporting traditional marriage, and the themes of state sovereignty weigh in favor of the Court affirming the constitutionality of such laws.  Marriage is a matter for the states, and for the people of the states as sovereign.

On this question of marriage, Chief Justice Roberts asks the public not to rush to judgment:  “The logic of [the Windsor] opinion does not decide[ ] the distinct question whether the States, in their exercise of their ‘historic and essential authority to define the marital relation,’ may continue to utilize the traditional definition of marriage.”

Chief Justice Roberts’s counsel is wise.  The harms about which Justice Kennedy speculates were predicated on DOMA fracturing a state’s marriage law into two tiers, with same-sex marriage relegated to a secondary status.  Yet, where a state maintains its traditional definition, these considerations are no longer applicable.  Moreover, any assertions that the same arguments remain relevant even where a state maintains its traditional definition of marriage would also support other competing family arrangements, including plural marriage (more than forty countries currently permit it).  The Windsor majority did not discuss whether the state must accept models competing with traditional marriage like “consent-based” marriage, as discussed by Justice Alito in his dissent.  Further, the Court’s analysis looks to the states as the place where the consensus on such questions is drawn.    The analysis in Windsor, therefore, supports the authority of the states.

Ultimately, leaving this issue to the democratic processes of the states preserves a foundational element of freedom:  the right of the people to govern themselves.  The power to define marriage is theirs alone.  As Justice Black observed in his dissent in In re Winship, “[t]he people . . . may of course be wrong in making . . . determinations [of fairness], but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights.”