Is Charles Krauthammer Right that United States v. Windsor Makes Nationalized Gay Marriage Inevitable?
In his column in the Washington Post yesterday, and in a plethora of other places, Charles Krauthammer argues that although the Supreme Court exercised restraint in this case, the logic of its ruling in overturning the Defense of Marriage Act (DOMA) made the overturning of traditional marriage laws in all 50 states inevitable. Krauthammer points out that the majority opinion, written by Justice Anthony Kennedy, makes use of two arguments: 1) federalism (or states’ rights); 2) the equal protection clause of the 5th Amendment. If the Court had merely relied on the first argument, he suggests, its ruling would have been essentially conservative, properly returning the issue of marriage to state jurisdiction. The introduction of the equal protection argument, however, necessitates that all gay couples receive equal protection. As Krauthammer puts it,
If the argument is just federalism, the court is saying: Each state decides — and we, the court, are out of here. But if the argument is equal protection, one question is left hanging. Why should equal protection apply only in states that recognize gay marriage? Why doesn’t it apply equally — indeed, even perhaps more forcefully — to gays who want to marry in states that refuse to marry them?
If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place?
Which is exactly where the majority’s second rationale leads — nationalizing gay marriage, the way Roe nationalized abortion.
But Krauthammer doesn’t get the Court’s logic quite right. Read the majority opinion and you will notice that it builds the second argument (equal protection) on the narrow foundation of the first argument (a state’s right to regulate marriage within its bounds). The logic is not that DOMA discriminates against gay couples because it does not treat them the same as straight couples, but that DOMA discriminates against a particular subset of married couples because it does not treat them the same as the rest of the married couples of the state wherein they reside. Note how the equal protection argument is carefully worded:
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States ….
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.
Lest readers fail to appreciate the significance of this connection, the opinion concludes, “This opinion and its holding are confined to those lawful marriages.”
In his dissent, Chief Justice John Roberts explains why the very connection between the equal protection argument and the federalism argument undermines the case for nationalizing gay marriage on the basis of the former.
The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area “central to state domestic relations law applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells….
The majority extensively chronicles DOMA’s departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.” But there is no such departure when one State adopts or keeps a definition of marriage that differs from that of its neighbor, for it is entirely expected that state definitions would “vary, subject to constitutional guarantees, from one State to the next.” Thus, while “[t]he State’s power in defining the marital relation is of central relevance” to the majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.
In short, the invocation of the equal protection clause merely explains why the federal government is obligated to provide equal recognition to marriages that receive such equal recognition in the states wherein they reside. Why? Because the regulation of marriage is within the prerogative or “sovereignty” of the state, not the federal government. By the same logic, however, the federal government cannot force gay marriage on states that define it traditionally, because to do so would undermine the very same state sovereignty, which is to say, the very federalism on which United States v. Windsor relies.
Does this make it certain that the Court will not nationalize gay marriage in the future? Of course not. There are a myriad of legal issues that arise due to the ever more complicated patchwork of marriage laws among the various states. What happens to a gay couple married in Massachusetts, who then relocate to Georgia? How can they possibly lose the federal benefits to which they were entitled when they lived in Massachusetts? And given the Constitution’s declaration that the contracts entered into in one state are to be recognized in another, how can Georgia fail to honor a marriage contract recognized as valid by both the state under whose law it was established, and by the federal government?
No one knows exactly how the Court will address these questions. Still, as Roberts points out, these sorts of questions are not entirely new, and nothing in United States v. Windsor dictates their outcome.
I write only to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us — DOMA’s constitutionality — but also a question that all agree, and the Court explicitly acknowledges, is not at issue.
Krauthammer may be right that United States v. Windsor paves the way for future challenges to state laws defining marriage traditionally, but he is wrong that its logic makes the nationalization of gay marriage inevitable. Indeed, as Roberts shows, the logic of the case arguably does as much to protect the sovereignty of those states holding to the traditional definition of marriage, as it does those states that abandon it.
Posted on June 28, 2013, in Constitution, Marriage, States' Rights, Supreme Court and tagged Anthony Kennedy, Charles Krauthammer, Defense of Marriage Act, gay marriage, United States v. Windsor. Bookmark the permalink. Comments Off on Is Charles Krauthammer Right that United States v. Windsor Makes Nationalized Gay Marriage Inevitable?.