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Would a gay-rights victory on DOMA include a ‘constitutional Trojan horse’?
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Would a gay-rights victory on DOMA include a ‘constitutional Trojan horse’?

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Would a gay-rights victory on DOMA include a ‘constitutional Trojan horse’?

Apr 4, 2013, 12:53 pm CDT

A federalism argument that almost killed the Obama administration’s health care law is being pressed in the Supreme Court as the justices consider a challenge to the statute barring federal benefits for same-sex married couples.

A decision on states’ rights grounds in United States v. Windsor would succeed in overturning the Defense of Marriage Act, but it could also become “a constitutional Trojan horse,” according to a New York Times Opinionator column by Linda Greenhouse, the newspaper’s former Supreme Court reporter.

If the court strikes down DOMA on grounds of states’ rights, rather than equal protection, same-sex married couples would be protected in the nine states that allow gay marriage. “But it would snatch away the promise for those living elsewhere,” Greenhouse says, “particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th.”

A law professor who supported a commerce clause attack on the health-care law, Randy Barnett of Georgetown University, is among a group of professors who signed an amicus brief backing the states’ rights argument in the DOMA case. “DOMA falls outside Congress’s powers” because “marriage is not commercial activity,” the brief says. It also argues that the law “undermines the states’ sovereign authority to define, regulate and support family relationships.”

Federalism arguments didn’t succeed when the Supreme Court struck down laws barring interracial marriages and decided that indigent defendants have a Sixth Amendment right to legal counsel.

Maybe it’s not surprising that the federalism argument is being advanced in the DOMA case, Greenhouse says. “Federalism tends to emerge from under the rocks in times of constitutional ferment, when the status quo is cracking and needs some propping up,” she says.

George Mason University law professor Ilya Somin, one of the authors of the federalism amicus brief, takes issue with Greenhouse’s conclusions in a post at the Volokh Conspiracy. “Our federalism brief merely claims that Congress lacks the constitutional authority to enact DOMA because the law exceeds the scope of Congress’ enumerated powers,” Somin writes. “That conclusion is perfectly consistent with the view that state laws banning gay marriage violate individual rights protected by the 14th Amendment.”

Perhaps most important, Somin says, is that he and a majority of the six professors who signed the brief are supporters of gay marriage.

Updated at 1:30 p.m. to include Somin’s views.

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