Trojan Horseshit

In a post entitled, "Trojan Horse," Linda Greenhouse blogged the other day about the emergence of a federalism argument against the federal Defense of Marriage Act:

I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?

You might have thought the case, United States v. Windsor, was about equality: marriage equality, in the graceful current locution. The two lower federal courts that ruled in this case on its way to the Supreme Court held that the Constitution’s equal protection guarantee required the federal government to treat married couples, same-sex and opposite-sex, equally for purposes of the more than 1,000 provisions of federal law that relate to marital status.

I thought that’s what the case was about, too. But what reverberated from the bench was the discordant music of federalism – the federalism that almost sank the Affordable Care Act; the federalism that seems about to put a stake through the heart of the Voting Rights Act; the revival of the mid-1990s federalism revolution that had seemed, until recently, to have run its course at the Supreme Court with the departure of two of its most energetic guardians of states’ rights, Justice Sandra Day O’Connor and the late Chief Justice William H. Rehnquist.

Greenhouse argues that striking down DOMA would be a mistake because it would enshrine marriage as a matter of states' rights, and therefore undermine efforts to establish a nationwide right to same-sex marriage:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races. Virginia maintained that its law did not amount to racial discrimination because the prohibition ran equally in both directions – just as blacks couldn't marry whites, whites couldn't marry blacks either. 

Consequently, the state argued, the case came down to a simple matter of federalism. But Chief Justice Earl Warren’s unanimous opinion didn’t buy it. “Marriage is one of the basic civil rights of man,” the court said. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The right, in other words, belonged to the individuals involved, not to the state. 

The state of Virginia was quite wrong, of course, but not because it was (or is) untrue that marriage and family law is a matter committed to the states' police power. Rather, as the Loving decision put it, although "marriage is a social relation subject to the State's police power, the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment." In other words, it is in fact easy to reconcile an argument that a federal marriage regulation such as DOMA goes beyond the federal government's enumerated powers with an argument that a state law same-sex marriage ban is void under the federal constitution's various protections of individual and fundamental rights. Federalism is about the limitations on federal power—not the limitlessness of state power. Greenhouse is deeply confused if she thinks Loving was a rejection of core federalism arguments.

What really caught my eye, though, was that Greenhouse centered her piece on an amicus brief filed on behalf of some supposedly "conservative" federalism scholars. The gist of Greenhouse's piece is that these conservatives view the federalism result is the least bad result. Her implicit argument is that these conservatives obviously hate homosexuals and oppose gay marriage, but if DOMA's going down it should at least be on federalism grounds so they can carry on their evil ways under the safe harbor of state law.

That amicus brief was submitted on behalf of just six scholars. One of them is Minnesota's Dale Carpenter. I very much doubt that he thinks the brief is a sneaky way to undermine the rights of homosexuals.