It is hard to overstate the importance of the Supreme Court’s forthcoming decision in United States v. Windsor. At issue is the part of the Defense of Marriage Act that defines “spouse,” and “marriage,” for all federal purposes, to exclude same-sex couples. According to the solicitor general, there are 1,138 federal laws and programs affected by this definition. As a result of DOMA, same-sex couples legally married under their own state’s laws are nonetheless denied benefits otherwise afforded to married couples under federal employment laws, Social Security laws, tax laws, immigration laws and myriad other programs.
It is a simple as this: As long as DOMA is in effect, no gay couple anywhere in this country is truly married. If a gay couple is deemed not to be married for more than 1,000 purposes governed by federal law, it’s hard to say that anything approaching marriage equality exists anywhere in the country, no matter how many states allow same-sex couples to marry.
I wrote earlier that when DOMA was enacted in 1996, “no one thought it was conceivable that the Supreme Court would declare it unconstitutional. “ Emily, you responded with a smattering of counterexamples, but, as you recognize, even those few statements were at most expressions of a desire that the courts should strike down DOMA, not predictions that such a result was at all likely at the time.
At a recent forum, a student asked me if anyone if the Clinton Justice Department argued at the time Congress considered DOMA that the proposed legislation was unconstitutional. The short answer is no. (I was at that time head of the Office of Legal Counsel in the Justice Department.) As is usually the case, DoJ submitted to Congress a statement that included a reference to the act’s constitutionality. That particular comment, however, was carefully worded to avoid opining that the Justice Department itself believed DOMA was constitutional, stating merely “The Department of Justice believes that H.R. 3396 would be sustained as constitutional if challenged in Court.” And, of course, that was a correct expectation under what was then the controlling 1986 precedent of Bowers v. Hardwick, which held that states were constitutionally free to make homosexual intimacy a felony. As long as states could criminalize homosexual conduct, it necessarily followed that they could decline to allow same-sex couples to marry.
Lawrence v. Texas changed everything. Decided in 2003, Lawrence overruled Bowers and fundamentally altered the landscape for governmental incursions on individual liberty of gays and lesbians. In his concurring opinion in Bowers, Chief Justice Warren Burger had written, "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." Lawrence, however, repudiated the notion that moral disapproval alone could justify a government restriction on liberty.
So now, 17 years after DOMA was enacted, the belief is widespread that the court is on the verge of holding DOMA unconstitutional. Indeed, Solicitor General Donald Verrilli Jr. (correctly in my view) even declined to defend it the Supreme Court. (A group of House Republicans retained its own lawyer, Paul Clement, to argue in defense of DOMA .) The solicitor general had to address first whether the courts should now view with “heightened scrutiny” the government’s rationale for laws discriminating on the basis of sexual orientation. To argue against judicial scrutiny, the SG would have had to tell the court either that there has been no meaningful discrimination against people who are gay, or that discrimination on the basis for sexual orientation is reasonable because being gay affects a person’s ability to contribute to society. President Obama does not believe either of those propositions and his Justice Department properly decided not to urge them on the court.
Once it is determined that judges should view laws that discriminate based on sexual preference with heightened scrutiny—in other words, that they should approach them more skeptically—it becomes extremely difficult to defend DOMA. With Lawrence having taken moral disapproval off the table, the task becomes nearly impossible, even for the skillful lawyers arguing the anti-gay marriage cases. (Their burden reminded me of that facing the French intellectual who undertook to write a 300-page novel without using the letter “e”. He did it, sort of, but I’m sure it wasn’t any good.)
The assumption that the Supreme Court may be poised to strike down DOMA is based not only on the shift from Bowers to Lawrence, but by changes in the larger culture. When DOMA was enacted, not one single-sex couple had ever been married in America. Now such marriages seem commonplace. At work is the enormous effect of what the late law Professor Charles L. Black, Jr. called the “normative power of the actual.”
Another major case pending is Shelby County v. Holder, in which the court is considering whether to declare unconstitutional a key provision of the Voting Rights Act, called Section 5, which requires the Old South, and some other scattered cities and towns, to get approval from a federal court or the Justice Department before they can make any changes in their election laws. Are you a hypocrite if you applaud the court if it invalidates the Defense of Marriage Act and then complain if it does the same to the Voting Rights Act? I don’t believe so.
DOMA should be invalidated not out of respect for state autonomy, but because it imposes a thousand legal disadvantages on married couples who are gay without any legitimate justification for this deprivation of individual rights. Section 5 of the Voting Rights Act admittedly intrudes on state autonomy, but it does so pursuant to a constitutional amendment that was intended to empower Congress to do just that. The 15th Amendment proclaimed after the Civil War that “the right to vote shall not be denied or abridged … by any State on account of race” and provides that “The Congress shall have power to enforce this article by appropriate legislation.” Whether Section 5 is still necessary, and whether the formula for determining which states and localities it covers is sufficiently up-to-date, are difficult policy questions. But, to use the words of the great Chief Justice John Marshall in 1819, in McCulloch v. Maryland, if this be a “doubtful question, “it is one in “which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted.” Such a question is one that should be resolved by the only institution of the federal government expressly mentioned in the 15th Amendment: Congress.