The Question of Federalism: SCOTUS, Marriage, and the Constitution

You’ve probably heard that the Supreme Court is now hearing arguments about a couple cases on “marriage equality” or “the definition of marriage” – depending, of course, on which news source you choose to read or tune in to.  Let me tell you:  that is patently false.  Marriage – however you want to define it – is not on the docket in either Hollingsworth v. Perry nor U.S. v. Windsor.  Federalism is at stake.

Hollingsworth v. Perry is the California case brought about by Proposition 8 in which the plaintiffs essentially argue that the popularly affirmed state amendment to determine marriage as an institution comprised of a man and a woman is contrary to the United States Constitution and thus must be overridden.  U.S. v. Windsor is concerned with the federal Defense of Marriage Act (DOMA) and its constitutionality.  Both cases are about the same thing.  Both deal with marriage and the Constitution.  What must be determined is the relationship between the two.  This relationship is found not in the essence of marriage itself, but by way of the type of issue that marriage is.

The question of marriage is both local and moral.  The way marriage is defined is pertinent to the local structure of society.  Marriage is an institution that structures society.  It is local since it is constituted by only two persons.  Clearly, it is not some commercial corporate entity extending across state lines that needs overarching federal regulation, but a union of two persons that also orders how they function together in society from the local level upwards. To the extent that marriage does require government action (in cases of divorce, child services, contractual negotiations, the legal benefits of marriage, etc.) it is limited to the city and state.

Furthermore, the definition of marriage is deeply intertwined with morality.  On one hand of the marriage question, one man and one woman who love each other in a potentially fruitful way should marry and be recognized as married. Here, there are broader concerns than “just making each other happy”: you acknowledge the natural order of man and woman (or male and female), perhaps you are guided by religious convictions, and wish to secure a future for your family, community, and ultimately, civilization.  On the other hand, the moral dictum is that any person who loves another in some strong way should be able to marry him or her by the simple fact that you are in love, and make each other happy.  The two notions are very different.  Both claim to be intrinsically moral.

As a moral issue and one of specifically local structure, defining marriage evidently falls under the category of police powers.  These powers, granted to the states by the Tenth Amendment, are generally understood to be enforced for the betterment of “health, safety, and morals” of society.  Therefore, as a question of morals, the question of marriage is constitutionally reserved for the states to answer.  The two cases presently being argued before SCOTUS are not about defining marriage, but about defining who defines it as per the Constitution.

This is not the word on the street, however.  Consider, for instance, this sensationalist soundbite from columnist Jeffrey Toobin:

The two cases present variations on the same fundamental question: Is there any circumstance in which the state can deny gay people benefits that are granted to straight citizens? …  There are really only two reasons that gay marriage is still illegal in more than three-quarters of the country: that’s the way it has always been; and the very idea of same-sex marriage makes some people, well, uncomfortable. But courts, even the current Supreme Court, usually require that laws be justified by something more than tradition and bigotry.  (The New Yorker)

Besides his blatant disregard for or ignorance of the rational arguments for the conjugal view of marriage, Toobin flagrantly neglects to address the critical question of what level of the state has the right to deal with the question of marriage.  He simply says “the state,” clearly not meaning states like California or Texas, but rather the nation-state that is the USA.  He disregards the Constitution’s instructions for federal versus state powers and leaps straight into vapid emotive rhetoric to disparage the position of those who believe in the conjugal view.  Toobin mistakenly or misleadingly construes Hollingsworth v. Perry and U.S. v. Windsor as directly concerning the definition of marriage.  The way The New York Times frames the issue also suggests this.  As does The USA Today, The Huffington Post, and unsurprisingly, MSNBC online.

Despite the murky waters of most media, there is some clarity out there.  The Wall Street Journal Editorial Board keenly observes:

The two cases before the High Court are less about the institution of marriage than the sanctity of democratic institutions and the proper role of the courts.  (wsj.com)

Right on.  The Supreme Court is to make a decision based not on public whim but on Constitutional grounds.  In this context, the act of defining marriage must first be deemed a federal or state issue in the light of the Constitution.  If SCOTUS leaps to defining marriage itself, it would strike a huge blow to federalism.  On the other hand, Stanford Professor Michael McConnell puts things clearly:

If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question. (The Wall Street Journal)

How things turn out remains to be seen.  But, given the tone of the oral arguments yesterday, it may well be the case that federalism will prevail.