by By Tom Watts
Yesterday, in the DOMA oral argument, Justice Scalia appeared to make a logical mistake, which created phantom marriages acknowledged by law but never created by law. He was picking up a hypothetical asked twice by Chief Justice Roberts, but he did not appear to have thought it through. As originally posed, the question was as follows:
“[Y]ou agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say ‘marriage’ in Federal law, we mean committed same-sex couples as well…. Or do you think that they couldn’t do that?” He then clarified, “[Y]ou don’t think it would raise a federalism problem either, do you?”
Presumably his point was that there couldn’t be a federalism problem with Congress defining marriage one way if Congress could define marriage the other way without violating federalism. This is a widely used mental trick among judges (and philosophers): would you still hold your position if we switched sides and your sympathies ran the opposite way?
The problem is that the trick doesn’t work here. For Congress to define marriage to include committed same-sex couples, there need to be legally committed same-sex couples. Traditionally, states grant marriage licenses. Thus, either a state would have to grant a marriage license to a same-sex couple, which the federal government then would recognize—clearly not a violation of federalism—or the federal government would have to begin granting marriage licenses on its own in defiance of traditional state prerogatives—which seems much more problematic on federalism grounds, but not for the reasons that DOMA is.
To his credit, Solicitor General Verrilli just said, “I don’t think it would raise a federalism problem,” and the Chief Justice said, “Okay.” But the Chief Justice asked this question again of the second lawyer arguing against DOMA, and Ms. Kaplan seemed to get very confused. After an inconclusive colloquy with the Chief Justice, she found herself in the following exchange with Justice Scalia:
KAPLAN: The Federal Government doesn’t issue marriage licenses. It never has.
JUSTICE SCALIA: Well, it’s not doing that, it’s just saying… for purposes of all these Federal statutes, when we say marriage, we mean… heterosexual and homosexual marriage. If that’s what it says, can it do that?
KAPLAN: As long as the people were validly married under State law, and met the requirements of State law to get married —
JUSTICE SCALIA: No, no, no, no.
Justice Scalia appeared to be trying to create a hypothetical in which the federal government recognized marriages that had not been performed by the states (“No, no, no, no”) but also had not been performed by the federal government (“[I]t’s not doing that”). These phantom marriages haunted the discussion, but the hypothetical did not work as intended, and I hope the Court moves past this hypo quickly. Perhaps it could focus on the real marriage that the case concerned, that between Edith Windsor and Thea Clara Spyer, rather than phantom marriages created by no government but only by a judge’s inconsistent imagination.