Gay Marriage Advocates Embrace Federalism, Reject New York Times

Last week
I criticized a column by New York Times legal pundit
Linda Greenhouse which argued that “the campaign for marriage
equality would be worse off” if the Supreme Court voided the
Defense of Marriage Act on federalism grounds. “A ruling that left
the states to their own devices when it comes to marriage would
take the equal protection guarantee out of the picture,” Greenhouse
asserted, dubbing the federalist case against DOMA a conservative
“Trojan Horse” designed to outlaw gay marriage at the state
I’m happy to report I am not alone in finding fault with
Greenhouse’s work. At the blog of the liberal American Constitution
Society, two prominent lawyers involved in “the campaign for
marriage equality” have rejected Greenhouse’s dubious assertions
and endorsed a federalist argument against DOMA. As Mary Bonauto,
the Civil Rights Project Director for the group Gay & Lesbian
Advocates & Defenders, and Paul Smith, the Washington lawyer
who argued and won the 2003 Supreme Court case Lawrence v.
Texas, observe:

The primary concern [Greenhouse] expressed was that a decision
invalidating DOMA on federalism grounds would, by emphasizing the
primacy of states in setting marriage policy, somehow immunize from
constitutional challenge those states that have chosen not to
extend marriage rights to same-sex couples. But this concern
reflects a mixing of constitutional apples and oranges.

The federalism concerns raised by DOMA have to do with the power
of Congress. It is Congress that chose in 1996 to exclude
only same-sex couples married under state law from the otherwise
capacious category of state law “marriages” recognized under
federal law. It expressly did so in part to undercut potential
state choices in favor of marriage equality. When that law is
challenged as discriminating against gay couples, the fact that
Congress has no general power to marry people is properly weighed
in the balance when lawyers try to come up with substantial
justifications for what Congress did….
Whatever one’s political inclinations, it is not possible to
find another example of federal legislation that comes anywhere
close to DOMA. And that understanding leads to the last and perhaps
most important lesson that federalism teaches in this case. When
the federal government acts in a way that not only is
unprecedented, but also violates some of the basic principles of
federalism, courts enforcing the equal protection guarantee have
good reason to search more carefully for the government’s real

Read more about the federalist case against DOMA

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Gay Marriage Advocates Embrace Federalism, Reject New York Times

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