Mehring: A Constitutional Contradiction

The Supreme Court recently heard arguments in two cases pertaining to same-sex marriage. In one case, two same-sex couples seek to invalidate a successful voter referendum, Proposition 8, that limited marriage in California to opposite-sex couples. In the second case, Edith Windsor is suing the federal government for levying estate taxes on property she inherited from her deceased spouse a tax she would not have faced had her spouse been a man, owing to the federal Defense of Marriage Act. Regardless of the outcome for either plaintiff, the cases will stake their claim among the most important social questions ever to arise in the judiciary canon.

The exact legal quandaries in play are complex and extend beyond the issue of whether same-sex couples, when denied marriage, are denied a civil right. In both cases, there is uncertainty as to whether the petitioners even have the right to argue before the Court. Assuming the matters of “standing” are resolved such that the cases may proceed on the merits, arguments on both sides focus on the issue of federalism more so than on equal rights. A combined three hours of argumentation spent comparatively little time considering the harms imposed on same-sex couples by the implicated laws. Even the very tangible $360,000 estate tax at the center of the DOMA case was discussed not as an injustice imparted on Windsor but as a sum of tax revenue the government may have to forfeit.

That the bulk of argumentation centered on the rights of arbitrarily delineated polities and not of living, suffering people is exasperating in principle, even if, potentially, strategic in practice. But advocates of a federalism defense on both sides of the issue may be failing to recognize a major inconsistency in that defense as evidenced by the fact that both sides are able to employ it. Defenders of Proposition 8 appeal to federalism as a reason to uphold a statute enacted through the most democratic means possible, by California citizens directly, and to prevent a judicial encroachment on the rights of states and citizens to regulate themselves. Opponents of DOMA argue that states and citizens are denied these same rights by a federal law that only recognizes marriages between opposite-sex couples: because marriage is so deeply embedded in federal law, states effectively become unable to extend full marriage rights to same-sex couples, even if they want to.

But a states’ rights defense in both cases jointly would lead to contradicting results. The Supreme Court would effectively condone discrimination by the states while forbidding the same by the federal government. It was actually conservative Justice Samuel Alito who highlighted the absurdity of this potential outcome. He hypothesized three same-sex couples from three different states: one state that allows same-sex marriage, one that recognizes domestic partnerships and one that does not recognize same-sex relationships in any capacity. If one member from each couple were injured while in military service, the government would, with DOMA invalidated and states’ rights upheld, provide hospital visitation rights, for instance, only to the legally married partner.

If Justice Alito offered this hypothetical to rationalize a federal restriction on same-sex marriage, his argument hinges on the assumption that treating comparable same-sex couples differently constitutes unjustifiable discrimination, at least on the federal level, while treating same-sex and opposite-sex couples differently does not. This assumption describes our present reality, in which federal law customarily designates the property of the deceased to a surviving spouse tax-free, while Windsor was charged hundreds of thousands of dollars after the death of her wife.

It is for this reason that the question of equal protection and individual rights inevitably underlies any states’ rights argument. If states’ rights are upheld, equally committed same-sex couples will be subject to different treatment under federal law. The need for a federal remedy emerges, which would require either the equal restriction of marriage from same-sex couples, a recapitulation of DOMA and a recursive infringement on states’ rights or the equal provision of federal marriage to same-sex couples, which again contradicts a doctrine of federalism. States’ rights issues beget more states’ rights issues. Nothing will resolve until it is unilaterally determined, on a state and federal level, whether there is a legitimate government interest in denying marriage to same-sex couples.

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