The 'Federal Law of Marriage': Deference, Deviation, and DOMA

I. INTRODUCTIONOn June 26, 2013, the Supreme Court held in United States v. Windsor, that the federal Defense of Marriage Act ("DOMA") is unconstitutional.1 DOMA defined marriage as solely between one man and one woman for every purpose under federal law.2 Consequently, it required that same-sex couples who are legally married under state law be denied both federal recognition of their marriages and a host of federal benefits (and burdens) that apply to heterosexual married couples. DOMA had been challenged in federal courts across the country as a violation of the U.S. Constitution. Plaintiffs claimed, inter alia, that it violated the Spending Clause, Equal Protection under the Fifth Amendment, and federalism under the Tenth Amendment.3 The First and Second U.S. Circuit Courts of Appeal, had previously concluded that DOMA violates Equal Protection, affirming district court grants of summary judgment.4 Windsor was decided as this article went to press. In a five to four decision, the Supreme Court determined that in passing DOMA and banning same-sex couples married under state law from receiving any federal marriage benefits, Congress had interfered with the rights of states to define marriage and thereby, had violated the rights of Windsor and other couples to Equal Protection. At press time, the Court still had not yet formally determined the fate of several other certiorari petitions seeking review of DOMA-related issues, although some might argue that Windsor is practically determinative.5 And on the same day that it decided Windsor, the Supreme Court also decided a case challenging a state's right to limit the term "marriage" to heterosexual couples.6This article focuses on the issues raised by DOMA and the federal recognition of state-approved same-sex marriages. While the Supreme Court invalidated DOMA, its decision in Windsor reserved judgment on some key questions that DOMA raised. For example, the Court stated that "by history and tradition" the states controlled marriage, but it did not define that control itself as a constitutional restriction. The Court also expressly acknowledged that the federal government can sometimes deviate from the states on marriage when federal policy is as at issue. While indicating the instances were limited, the Court did not identify the line between state and federal power. In support of its claim that DOMA made same-sex couples second-class citizens in violation of Equal Protection, the majority did list several benefits that same- sex couples were denied. But it did no serious examination of the purposes of these underlying statutes to find what the federal policy vindicated by those statutes was, nor did counsel for either side. The Court also did not settle the debate over the purpose of marriage in the United States-whether it is primarily to support procreation as DOMA defenders argued or whether government support of marriage is to facilitate the formation of consensual family relationships irrespective of procreation as the DOMA challengers claimed. Indeed, the word "procreation" did not even appear in the majority opinion, probably because it relied solely upon DOMA's scope to invalidate the statute. And finally, and relatedly, the Court expressly declined to say whether the federal government was required to grant uniform benefits to same-sex couples and heterosexual couples as a matter of Equal Protection if states recognizing such marriages did not distinguish the two groups of couples. Thus, we are left to ask whether procreation is a legitimate basis for the distribution of some federal benefits? Is biological difference a legitimate basis for distinguishing funding among the married? If so, can heterosexuality alone be a marker for procreation or biological difference? Would a regime for same-sex couples that does not use the term "marriage," but provides federal benefits satisfy Equal Protection? Do the benefits provided have to be exactly equal? Do same-sex couples have a constitutional right to have their marriages called "marriage" at the federal level if their respective state uses that term? …