Not to look a gift horse in the mouth, but Justice Kennedy's apparent view, in yesterday's oral argument about DOMA, that it might be unconstitutional based on states' rights, strikes me as really weak (and I am restraining my impulse to offer a more vitriolic description). I will be glad if he supplies the fifth vote to overturn DOMA, and if he wants to do it this way, rather than invoking discrimination, I suppose one should be glad overall. (Just as, in the healthcare litigation, I was glad that Chief Justice Roberts found a way to uphold the law, although I considered it completely ludicrous to view the mandate, unlike Medicare's far more aggressive intervention in the healthcare market and people's choices, as beyond Congress's commerce clause powers.)
But still, if Kennedy ends up supplying the fifth vote in a separate opinion relying on states' rights - and I realize that I may be jumping the gun in assuming that he will - it's worth noting how intellectually flimsy his avowed stance would be.
Let's put the apparent Kennedy position this way. He appears to be inventing a new constitutional provision called the Reverse Supremacy Clause. Under this fictional clause of the U.S. Constitution, once the states have expressed their policy judgment in a particular area, the federal government is constitutionally bound to accept that judgment, and cannot reach a different one on the same issues when it is designing federal legislative programs such as Social Security, Medicare, and the federal income tax.
OK, so all 50 states plus the District of Columbia have this legal status called marriage. It matters for various state law purposes, such as property rights and the operation of rules governing the workplace. The states do this based on policy judgments responding to the fact about human beings that we often form family or household bonds involving couples.
The federal government also has various rules that make policy judgments regarding the legal significance under various programs of such couples or families or households as it chooses to recognize. For example, the income tax requires joint returns (or use of the married filing separately route, rather than single or head of household) for individuals who are married, a determination that generally is made under state law. Likewise, Social Security and Medicare offer certain spousal benefits.
Certain transfer programs that provide aid to the poor look beyond state law marriage to assign legal consequences to other measures of couple or household status. And federal immigation law, I gather, disregards state law marriages that it classifies as shams, without any implication that it is adjudicating the state law validity of these marriages.
For that matter, there is an amusing federal income tax case, I believe from the 1970s,involving a couple that got divorced every December and remarried early the next year, using the tax savings from not having to file a joint return to fund a nice vacation. For federal income tax purposes, the divorces were held to be sham transactions, and thus the two individuals were required to file jointly or as marrieds filing separately.
OK, so suppose Congress were to say: We favor joint filing for certain types of couples, but we want to define the relevant couples in our own way. So we will count, say, everyone (and only those people) who (1) are cohabitants for at least 6 months out of the year, (2) commingle their funds or their consumption expenditures in a non-arm's length manner, and (3) are deemed to have some sort of requisite state of mind regarding their relationship. Perhaps the legislative history might add that state law marriage is evidentiary of whether one is in a couple for federal income tax purposes, but that any resulting presumption can be overridden by factors A, B, and C.
This law might be administratively unworkable, but can anyone seriously maintain that it would violate states' rights? Why can't Congress define couples as it likes, solely for purposes of federal programs? When the states decide how to define legally relevant couples for purposes of their own rules, do they really take away Congress's discretion to do the same thing for purposes of its rules?
But then we get Justice Kennedy saying that “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.” The only alternative I see to viewing this as an invocation of the fictional Reverse Supremacy Clause is to say that he is applying some sort of unrationalized "all or nothing" rule, under which, if Congress chooses mainly to rely on state law definitions, it can't selectively depart from them.
But how can one possibly defend that view, leaving aside the discrimination problem? Why shouldn't Congress be able mainly to rely on state law marital status most of the time (thus reaping significant administrative benefits), but modifying the relevant definition for federal purposes however it likes, so long as it is advancing legitimate federal policy objectives?
Needless to say, the problem with DOMA - and the reason I would vote to hold it unconstitutional - is that the distinction it makes, in determining which couples to recognize, is discriminatory and does not advance a valid federal purpose. But this has nothing to do with the fact that it otherwise relies on state law. Similarly, Congress could not constitutionally deny Social Security benefits to interracial couples, whether the definition that it otherwise applied was based on state law or on the hypothetical scheme that I set forth above.