The Playful Walrus: Deftly Defending DOMA

The fate of the federal Defense of Marriage Act, signed into law by Democrat President Bill Clinton with the backing of both Democrats and Republicans before any state had neutered marriage licensing, is currently in the hands of the Supreme Court of the United States.

Some conservatives reject the Constitutionality of DOMA based on federalism, which some of the Left have cited as well, inconsistent with most of their positions. I support federalism, too, but as we'll see below that doesn't mean DOMA is unconstitutional. I have wondered ever since DOMA has been an issue if, because some states mess things up, everyone else should be forced go along, especially given that there are many examples of states issuing other licenses and other legal designations that other states don't have to accept. A neutered license is no longer a "marriage" license, it is a "two people who are not legally married to others, of age, and not too closely related" license, and as such, should states be forced to recognize them?

I don't know of any legal analysts who expect such a move, nor do I think any notable briefs submitted to SCOTUS call for it, but although I recognize that certain powers are reserved to the state, I do think it is possible a credible case could be made that the right of a child to a mother and father could justify federal involvement in restoring bride+groom requirements to state marriage licenses.

For now, though, let's see what some others have said about why DOMA does pass the Constitutional test.

Ed Whelan wrote:
When supporters of same-sex marriage attack the federal Defense of Marriage Act, they invoke purported federalism concerns about the authority of the states to regulate marriage. But when they sue to strike down state marriage laws as unconstitutional, those federalism concerns disappear.
Leftism doesn't need to be consistent. The only thing guiding Leftists other than their feelings is their desire to tear down any institution that isn't part of the state.
DOMA defines “marriage,” for purposes of provisions of federal law only, as “a legal union between one man and one woman as husband and wife,” and it provides a corresponding definition of “spouse.”

That is important.
The question before the Court is whether DOMA violates the Constitution–specifically, the so-called equal-protection component that the Court has discerned in the Due Process Clause of the Fifth Amendment. (The 14th Amendment's Equal Protection Clause applies only against the states.) In other words, is it a violation of equal-protection principles for the federal government to define “marriage,” for purposes of provisions of federal law, in a way that excludes same-sex couples who are recognized as married under the law of the state in which they reside?
That is the question before the court.

Far from effecting any departure from past practice, DOMA merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. DOMA doesn't intrude at all on a state's authority to regulate marriage under state law. It doesn't nullify or prohibit any marriages, or in any other respect preempt the operation of state law. On the contrary, it leaves the states free to define, or redefine, marriage as they please. That point is illustrated by the fact that nine states (as well as the District of Columbia) have adopted same-sex marriage since DOMA's enactment.

DOMA's definition of marriage merely establishes what marriage is for purposes of provisions of federal law. Under our system of federalism, the states and the federal government have sovereign authority over their respective domains. Thus, DOMA respects and implements federalism by exercising the federal government's authority over federal law.
Here's something I haven't heard much about lately (I wonder why?):
Congress has often found it convenient to use state-law marital status in federal laws and programs. But it has never accepted state-law marital status as constraining how those laws and programs operate, and there is no reason that it should. For example, under provisions of the Internal Revenue Code, a person who is legally separated from his spouse, but not yet divorced, is treated as unmarried, as is a person whose spouse is a nonresident alien. Likewise, under the immigration laws, a marriage entered into for the purpose of gaining an immigrant's admission will be disregarded even though that marriage remains valid under state law. How could anyone imagine that federalism means that a state's authority to regulate marriage for state-law purposes should intrude on how the federal government operates in these and other areas?
If someone can imagine that you can have a marriage without a bride, they can probably imagine anything.
If the federal government were somehow obligated to incorporate into provisions of federal law whatever a state defines as a marriage, that would mean that a state that recognized polyamorous marriages would trigger federal benefits (prorated, let's assume) for members of those marriages.
Yes, and the proposed Respect For Marriage Act would make it so that if one state adopted polygamy, every other state would have to as well.
A proper understanding of DOMA and of federalism leads readily to the conclusion that DOMA easily satisfies the deferential “rational basis” review that the Court ordinarily applies to federal statutes. Among other things, DOMA clearly advances the federal government's interest in uniform eligibility standards for federal benefits. Just as it is reasonable for the federal government to apply a single definition of “disability” for purposes of Social Security benefits, it is reasonable to apply the same definition of “marriage” for federal benefits generally.

DOMA's challengers contend that the federal government's interest in uniform eligibility is somehow undercut by the fact that DOMA ignores variations in state marriage laws on matters such as age of consent and permitted degrees of consanguinity. But this shows only that DOMA distinguishes between the components of marriage that the federal government regards as essential and those it regards as incidental. DOMA's challengers accept this same distinction as reasonable, as they don't object to DOMA's requirements that a marriage be a legal union and that it be between two persons. Where they differ is only in their insistence that it is illegitimate to regard the male-female component of DOMA's definition as an essential attribute of marriage–the very point at the heart of the constitutional attack on state marriage laws.
At this point, the Leftist will usually stop reading and call names, or say "Is not!" or "Sez who?"

Whelan went on to document the dubious involvement of two judges in particular in attacking California's duly-adopted constitutional amendment.
On any sound understanding of the Constitution, the Prop 8 case is easy. The Constitution does not speak to the question of same-sex marriage, but instead leaves the matter to the processes of representative government for resolution. Under our system of federalism, it's permissible for the states to retain traditional marriage, and it's permissible for them to revise the definition of marriage to encompass same-sex couples. It's not the proper business of the Court either to require states to adopt same-sex marriage or to prohibit them from doing so.
He then explains exactly what the problem is with disregarding the original intent of the Consitution and undertaking judicial activism.
Alas, the fact that the DOMA and Prop 8 cases ought to be easy provides no assurance that the Court will get them right. The Court has many times strayed far from the Constitution, and in so doing it has accumulated malleable precedents that invite more straying. Much ink will be spilled in the coming months over whether DOMA and Prop 8 should be subject to “heightened” scrutiny or an “intensified” version of rational-basis review, whether homosexuals constitute a “suspect” or “quasi-suspect” class, and so on. These inquiries, which inevitably turn on subjective and flexible considerations, have no intellectual integrity and, when they yield results incompatible with the fair meaning of the Constitution, have no legitimacy. But that doesn't matter: Any justices intent on invalidating DOMA and Prop 8 will simply reverse-engineer whatever standard of review they believe provides them adequate cover.
Heads I win, tails you lose.

If the Court invalidates DOMA, it would violate the federal separation-of-powers principles that it is charged with defending. And if it invents a federal constitutional right to same-sex marriage, or otherwise impairs the ability of the states to preserve traditional marriage, that would be the real and grave intrusion on federalism.

Later, at National Review Online, Whelan wrote:

The fact that DOMA defines marriage and spouse for purposes of provisions of federal law does not mean that it regulates marriage and intrudes on state authority over marriage. For anyone confused on this point, consider this:

Property law, like marriage, is a matter within state authority. The federal government provides a tax deduction for mortgage interest on a taxpayer’s primary residence. Suppose the state of Massachusetts were to redefine “residence” to include an automobile. Would the federal government be obligated to give federal taxpayers in Massachusetts a deduction for the interest on their car loan? Or could the federal government, without intruding on state authority over property law, define residence for purposes of federal law to exclude automobiles?