How Marriage Equality Could Win In The Worst Possible Way At The Supreme Court

One way or another, marriage equality is coming to the United States. A recent poll shows support for equality at 58 percent, up 21 points from just a decade ago, and a massive 81 percent of adults under 30 support treating same-sex couples just like any other. The Supreme Court should strike down the anti-gay Defense of Marriage Act (DOMA) and California’s equally anti-gay Proposition 8 because they are unconstitutional, but one way or another, marriage equality is happening. And it is happening soon.

Perhaps for this reason, two leading conservatives published columns last week advocating a way the Supreme Court could strike down DOMA while doing maximal damage to the social safety net. Five days after anti-science columnist George Will published a piece seeking to discredit the social science supporting marriage equality, Will endorsed a radical misreading of the Constitution’s Tenth Amendment that would lead to DOMA being struck down. One day later, Michael McConnell, a former federal judge and leading socially conservative law professor, made the same argument in the Wall Street Journal. Here’s McConnell’s version:

[T]he court need not base its decision in Windsor on the merits of the same-sex marriage question. The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor — holding that DOMA improperly intrudes on the reserved powers of the states.

This is constitutional gobbledygook. McConnell and Will are both arguing that, because the Constitution does not give the federal government power over “domestic relations” it follows that DOMA exceeds Congress’ lawful powers. This is similar to the argument conservatives raised against the Affordable Care Act, and it is also compete nonsense.


Federal law grants married couples numerous financial benefits that unmarried individuals do not enjoy. Married couples pay taxes at different rates than single people. They are exempt from estate and gift taxes that apply to their spouse’s property. They receive certain benefits under Social Security, Medicare and other federal programs, and so forth. These financial benefits are constitutional because the Constitution gives Congress the power “to lay and collect taxes . . . and provide for the common defense and general welfare of the United States” — what lawyers call the “tax and spending power” — and the power to tax and spend necessarily includes the power to decide who pays what taxes and who receives what benefits. DOMA does not, as Will and McConnell suggest, define the meaning of “marriage” for the entire nation. Rather, it mostly just defines the meaning of the word “marriage” for the purpose of determining who is eligible for federal benefits that are given only to married couples.

If Congress does not have the power to decide who pays what tax rates and who receives what federal benefits, than the entirety of America’s safety net could be in danger. Retirement programs like Social Security cannot exist unless the government can limit it to persons of retirement age. Veterans benefits cannot exist unless the government can limit them to veterans. Even progressive taxation is in jeopardy under Will and McConnell’s theory, because the government must have the power to decide who pays more and who pays less taxes.

In other words, if the Supreme Court embraces Will and McConnell’s misreading of the Constitution, it could radically rework America’s social contract and leave most Americans much worse off as a result.Now, let’s be completely clear. DOMA is unconstitutional. But it is unconstitutional because the Constitution guarantees all people “the equal protection of the laws,” not because of some unworkable limit on Congress’ ability to decide who is entitled to federal benefits. The danger of Will and McConnell’s theory is that it would allow the conservative justices to accomplish Paul Ryan’s wildest dreams in a single judicial opinion, and to do so under the cover of a decision that most progressives would cheer.

Again, DOMA is unconstitutional and it must go. But the price of marriage equality is not losing progressive taxation and Social Security.