January 30, 2013
By Scottie Thomaston
The National Organization for Marriage (NOM) filed an amicus curiae brief United States v. Windsor, the case challenging Section 3 of the Defense of Marriage Act, in support of the Bipartisan Legal Advisory Group (BLAG) and in defense of Section 3 of DOMA.
Their brief in Windsor is largely focused on the Tenth Amendment arguments raised mostly in Massachusetts v. Department of Health and Human Services, decided by the First Circuit Court of Appeals (consolidated with Gill v. Office of Personnel Management.) The brief also focus on Congress’ ability to define its own terms for federal purposes. In their summary of the argument, they discuss the longstanding use of federal definitions in different contexts and then write:
Interestingly, in 2011 and 2012, one of the public policy organizations bringing this case publicly supported federal legislation that would in one case define marriage for federal purposes and, in another, create a new marriage-like legal status in federal law. This suggests that what they and other opponents of DOMA find offensive is not the consistent practice of Congress defining the terms it uses in the law but rather the definition chosen in this instance. That is an objection appropriately lodged with Congress itself rather than the federal courts.
There’s more below the fold…
The laws referenced seem to be the Respect for Marriage Act (to repeal DOMA) and the Domestic Partnership Benefits and Obligations Act to “provide the same family benefits to lesbian and gay federal civilian employees as are already provided to employees with different-sex spouses.”
They write that lower courts are “confused” about whether there’s a constitutional mandate for Congress to use state definitions and:
This Court should correct that confusion and uphold the longstanding Congressional practice of defining the terms it uses when it enacts law.
In terms of the argument that DOMA intrudes into what is considered to be a state’s prerogative:
When DOMA was enacted in 1996, no state had redefined marriage to include same-sex unions, so Congress could hardly have meant to “reexamine” non-existent same-sex marriage laws. Similarly, although a number of states have redefined marriage since its passage, DOMA does not require any examination or “intrusion” into those state definitions. Rather, it avoids doing so by enacting a simple statement of the how the term “marriage” will be used in federal statutes, regardless of the variety of state definitions that might be enacted.
And further on the Tenth Amendment:
In enacting DOMA, Congress has not infringed upon the powers of any state to regulate matters of family law. Indeed, since DOMA was adopted, a handful of states have adopted definitions of marriage that differ from the definition in DOMA.
They write that deferring to state laws would “radically transform” principles of federalism:
Specifically relevant here, there has never been a special carve-out that requires Congress to defer to state laws on domestic relations and marriage when federal statutes intersect with them. To announce such a carve-out now would be to radically transform the jurisprudence of federalism that has properly prevailed for over two centuries, at a time when the intersection between federal and state laws on domestic relations has dramatically increased.
They then list and describe several areas in which Congress has defined ‘domestic relations’ including immigration, land grants, military benefits, federal pension regulations, the census, copyright, bankruptcy, and taxes. They write that:
In sum, as these compelling and multifarious examples show, it is beyond cavil that Congress has the exclusive prerogative to define terms used in federal law and that this prerogative undoubtedly extends to laws implicating domestic relations and marriage. This near truism, although vociferously and conveniently opposed by Plaintiff here, has actually been embraced in previous bills proposed by proponents of same-sex marriage. At least two of these bills, which would legislatively accomplish Plaintiff’s objectives here, are predicated upon the central belief that Congress emphatically
does have a role to play in marriage and domestic relations.
They write that Congress has involved itself in defining marriage and domestic relations for federal law purposes for centuries.
And last, they argue that accepting this theory would “potentially unsettle” all areas of federal law. They suggest:
Simply put, Plaintiff’s argument that Congress lacks the authority to specify what it means when it enacts law could not be more clearly contradicted by the precedent and practice of Congress and this Court.
Conspicuously absent from their brief: any defense of opposite-sex marriage. And any discussion of the Fourteenth Amendment or its Equal Protection Clause [or the Fifth Amendment component] (and that clause’s possible impact on a Congressional definition.)
h/t Kathleen for this filing as always