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July 21, 2010

State Power and Same-Sex Marriage

Advocates of state power praised the recent decision by Judge Joseph Tauro, of the United States District Court for the District of Boston, in Commonwealth v. U.S. Department of Health and Human Services. Tauro found Section 3 of the Defense of Marriage Act unconstitutional for several reasons, including that the law violates the Tenth Amendment. That Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

Tauro reasoned (among other things) that states have the authority to regulate and define marriage, because marital status determinations traditionally have been viewed as falling within a state’s sovereign power. He noted that the federal government in its argument “offered little to disprove the persuasive precedential and historical arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sovereignty.”

Of course, the fact that, as a historical matter, marital status determinations have been seen as within the power of the states does not mean that Congress has no authority at all in respect to such determinations. Indeed, as Jeff Jacoby recently noted in the Boston Globe, Tauro neglects at least one important historical example of federal control of marriage: the longstanding federal ban on polygamous marriage in the states of Utah, Arizona, Oklahoma and New Mexico—states whose admission into the union Congress conditioned upon their prohibition of such marriages.

More fundamentally, it is not clear from the Constitution itself that marital status determinations are off-limits to Congress. Though the U.S. Supreme Court has indicated there exist traditional areas in which state authority to regulate should be presumed, that is not the same as immunizing whole areas of policy from federal regulation.

Consider an example provided by Judge Tauro in the companion case to Commonwealth v. U.S. Department of Health and Human Services, Gill v. Office of Personnel Management. In Gill, he found that Section 3 of DOMA violates equal protection under the Fourteenth Amendment. Tauro reasoned that Congress has recognized all state definitions of marriage save this one, which undermines the federal government’s argument that the law operates even-handedly. But surely Congress could, under its spending power, create incentives for the states to deter all kinds of marital unions, including those that some states currently allow—like the one Tauro pointed to as permitted under DOMA, namely, the marriage of a thirteen year-old female and a fourteen year-old male, with their parents’ consent. Congress might even be able to regulate certain marital status determinations under the Commerce power if there were a sufficiently demonstrable interstate connection—say, prohibiting marriages in which one party was fraudulently induced to cross state lines to get married.

The decision in Commonwealth v. U.S. Department of Health and Human Services demonstrates the dilemma that advocates of states’ rights face. The Constitution enumerates limited categories of federal authority, but those categories may, depending upon the circumstances, encompass areas traditionally regulated by the states. In other words, while states have a great deal of power in our federalist system, some of that power may be exercised in the shadows cast by valid federal regulation. The best arguments for states’ rights advocates accordingly may lie in the realm of political action, rather than that of constitutional litigation.

Lawrence Friedman

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