Justice Anthony Kennedy’s refusal to consider the Defense of Marriage Act using a relaxed “rational basis” test in Windsor has “ratified a sea change in constitutional jurisprudence,” says Richard Epstein. But it is a confusing sea change:
Justice Kennedy could have said openly that tradition should not count, or at least not count for very much, on the constitutional scales of justice. But on this occasion, his argument against DOMA was not the straight up “equal protection” argument that the Court finessed by invoking standing in Perry.
Rather, Kennedy’s lead argument (in this age of boundless federal power) was that the definition of marriage is properly left to the states. And why: “By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.” Oh. What, then, of Proposition 8?
So a question then arises: If the allocation of power between the two levels of government should be controlled by tradition, why does the definition of marriage traditionally used by all states now fail at the federal level? The point is particularly odd in this context given that DOMA says nothing about how states regulate their own definitions of marriage, but only determines how the federal government defines marriage for the purpose of distributing federal benefits—which has to be regarded as a core federal function. Of course, the federal government can follow state definitions, but it need not, and as Justice Kennedy himself notes, does not do so in defining marriage in immigration cases.
At this point, moreover, Justice Kennedy only compounds the confusion. If the federalism issue controls, those states that adhere to traditional definitions of marriage now control how the federal government distributes its benefits, so that it appears, at least for a nanosecond, that the United States could not constitutionally define marriage to include same-sex couples under DOMA for potential recipients who live in states that follow the traditional definition of marriage.
But don’t believe that this argument would ever win. [Defining Ideas, July 2]