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The inconsistency of the Cuccinelli 13: Attorneys General demonstrate hypocrisy on DOMA, Prop 8 cases

Briefs DOMA trials Prop 8 trial Trial analysis

Prof. Steve Sanders, an appellate lawyer and adjunct faculty member at the University of Michigan Law School, thought this piece he wrote for the American Constitution Society might be of interest to the P8TT community. It takes on the anti-equality amicus brief filed by 13 states and Attorneys General in the Prop 8 case, and contends that if these AGs were to be consistent, they would also be filing in support of Massachusetts in its challenge to DOMA. Cross-posted from ACS. — Eden

By Steve Sanders

Thirteen states have filed an amicus brief in Perry v. Schwarzenegger, the case in which the U.S. Court of Appeals for the Ninth Circuit will review a district court decision that struck down California’s same-sex marriage ban. The brief-submitted by the attorneys general of Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, Utah, Virginia, and Wyoming-argues that it is gravely important that states be allowed to continue privileging "traditional" marriage and denying equality to same-sex couples. One of the brief’s lead counsel is Virginia attorney general Ken Cuccinelli, a darling of social conservatives and the Tea Party movement.

The brief purports to offer an argument about marriage federalism-that every state should be able to carry out its own ideas without interference either from Washington or pesky federal judges. But as I’ll explain, these attorneys general — call them the Cuccinelli 13 — don’t really believe their own argument. They just want their states to be able to keep discriminating against gays and lesbians.

As you might expect from a group of mostly red states (11 of the 13 AGs are Republicans), the brief rehashes familiar social-conservative themes: marriage is about procreation; children are better off in heterosexual homes; it’s a slippery slope from gay marriage to legalized polygamy and incest; the "traditional" understanding of marriage should be constitutionally dispositive.

What’s interesting, though, is that the brief frames these arguments within a sweeping claim that states have "sovereign primacy over marriage." "Primary state authority over family law," they write, "is confirmed by definite limitations on federal power" and is a "bedrock principle of federalism."

Taking aim at the judge who invalidated California’s Proposition 8, the Cuccinelli 13 insist that "federal judicial power threatens to undermine state determinations of marital or parental status," and that the district court’s "fiat" (a silly characterization of a closely reasoned 136-page opinion) "exceeded its judicial authority." But this is an obtuse argument. The brief attempts to conflate the "domestic relations exception"-a judge-made abstention doctrine that deprives federal courts of jurisdiction over intrafamily disputes like divorce or child custody-with the power of federal courts to review the constitutionality of state laws. Faulty arguments aside, the Cuccinelli 13′s real point is that if states want to keep discriminating against same-sex couples, federal courts just need to butt out; they have no right to question majoritarian ideas – what the AGs call "the acquired cultural wisdom of citizens" – about marriage.

There are some ironies in the Cuccinelli 13′s defense of traditional marriage, as well as their invocation of children. One of the brief’s lead states, Indiana, was a notorious national divorce haven in the mid-19th century, offering non-residents a quick and easy way out of the marriages their own states, in their "sovereign primacy," had created. More recently, another lead state, Louisiana, has argued in the Fifth Circuit, in a case called Adar v. Smith that it may refuse to recognize the parent-child relationship of a Louisiana-born child and the same-sex couple who adopted him in a New York court. Louisiana’s position would effectively render the child an orphan in the eyes of its law. But such is the price Louisiana says must be paid for its right to denigrate the legal relationships that other states, in their own "sovereign primacy" over family law, have created.

The Cuccinelli 13 purport to honor the classic federalism principle that "individual states" should be allowed "to experiment with novel social or economic arrangements" like same-sex marriage on their own terms. But in fact, none of these states actually believes in that sort of marriage federalism. We know this because their own laws do not respect the sovereignty of other states — Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont, along with the District of Columbia — that currently license same-sex marriages.

A defining characteristic of American family law is that a marriage created in one state (assuming the couple was domiciled there at the time) will presumptively be recognized in all states. This common-law rule provides for certainty in legal relationships; prevents the casual evasion of marital obligations; and respects the rights of the state where the marriage was celebrated. In other words, while creating a marriage is a core incident of state sovereignty, recognizing a sister state’s marriage is simply the price of living in a federal system. Any other understanding would create an absurd regime where states could effectively nullify each others’ marriages, and couples’ marital status could change every time they crossed a state line. While you expect to have to apply for a new driver’s license when you move from one state to another, who expects to apply for a new marriage license? (As I have argued elsewhere, it is time for courts to recognize a liberty interest under the Due Process Clause that would prevent states from undoing marriages they simply don’t like.) In a highly mobile society like ours, a Des Moines same-sex couple who can count on their marriage being recognized only so long as they never leave Iowa does not have what most Americans would recognize as a marriage.

Yet that is the world the Cuccinelli 13 believe we should live in. All their states refuse to give effect to the relationships of legally married same-sex couples who relocate from someplace else. You’ve come into our territory, they say, invoking the antiquated "public policy exception" to the rule of marriage comity, and so we get to redetermine whether you’re actually married. For the Cuccinelli 13, "sovereign primacy" over marriage means not only insisting upon their own "traditional" ideas about marriage, but also denying respect to marriages that were created by other sovereigns with different ideas.

While the Ninth Circuit prepares to deal with Perry, less attention is being paid to a case on its way to the First Circuit: Massachusetts v. Health and Human Services, a challenge by the Bay State’s attorney general, Martha Coakley, to the federal Defense of Marriage Act (DOMA). While the Cuccinelli 13 intone about their "sovereign primacy" as a way to fend off judges who might stop them from discriminating against gay people, the Massachusetts case really is about who gets to define marriage, the states or the federal government.

A little background: DOMA, passed in 1996, creates a federal definition of "marriage" (one man, one woman) and forbids recognition of same-sex marriages for any federal purpose. As a consequence, it penalizes states that honor such marriages. Massachusetts loses millions of dollars in federal funding for programs ranging from Medicaid to veterans’ cemeteries because, while its state agencies recognize same-sex spouses, the federal government will not.

In July the Massachusetts district court ruled that DOMA violates the Tenth Amendment, which says "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." With DOMA, the court said, the federal government had arrogated to itself a power reserved to the states: the power to say who is married and who isn’t. DOMA thus overturns the "historically entrenched tradition of federal reliance on state marital status determinations."

Much of the district court’s opinion reads like the Cuccinelli 13′s brief in Perry. "[M]arital status determinations," it says, "are an attribute of state sovereignty," and "the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution."

The Cuccinelli 13 should, of course, enthusiastically embrace this holding. Were they to be principled, they would at this moment be preparing an amicus brief in support of their sister state Massachusetts as it attempts to ward off DOMA’s illegitimate exercise of federal power over marriage. After all, they say in their Perry brief that "even the broadest conception" of the federal government’s powers "forbids any possibility that Congress could regulate marriage." Moreover, the Tenth Amendment has traditionally been a favorite of legal conservatives. Cuccinelli has made himself a hero of political right by waging a high-profile lawsuit against the Affordable Care Act, the Obama administration’s landmark health care reform law, arguing that its individual mandate violates — you guessed it — the Tenth Amendment.

Of course, the Cuccinelli 13 are unlikely to link arms with Massachusetts. Given the choice between a consistent position in favor of states’ rights over marriage, or a consistent position against recognition of same-sex marriages by any level of government, it is predictable that they will choose the latter. Their real concern is the primacy of their definition of marriage. Just as the "acquired cultural wisdom of citizens" is a poetic euphemism for discrimination, the "sovereign primacy" of states is just another way of saying that federal courts adjudicating claims to rights and equality should buzz off.

44 Comments

  • 1. Ann S.  |  November 1, 2010 at 3:44 am

  • 2. Kate  |  November 1, 2010 at 3:49 am

    "Attorneys General," Steve…..

  • 3. Sagesse  |  November 1, 2010 at 3:50 am

    Subscribing to read later.

  • 4. Eden James  |  November 1, 2010 at 3:51 am

    That headline error was my error. Corrected.

  • 5. Alan E.  |  November 1, 2010 at 3:53 am

    I'm so glad that I moved out of Virginia. My brother was going nuts over that election cycle when Kenny got in.

  • 6. Kathleen  |  November 1, 2010 at 3:53 am

    Nice piece. Thanks for allowing the cross-post.

    Reminder to everyone that today is the due date for the proponents' Reply Brief in Perry. I'll get it up on Scribd as soon as it comes in.

  • 7. Michelle Evans  |  November 1, 2010 at 3:54 am

    Typical Christian Hypocrisy.

  • 8. Alan E.  |  November 1, 2010 at 3:55 am

  • 9. Alan E.  |  November 1, 2010 at 4:04 am

    Miller running for Senate in Alaska is also a part of the "states vs federal" hypocrisy. Rachel Maddow called him out on it (in a "moving" interview) just last week.

  • 10. Polydactyl  |  November 1, 2010 at 4:05 am

    You know I was starting to think I had hallucinated that part in school about states having to recognize each others' marriages.

  • 11. Alan E.  |  November 1, 2010 at 4:08 am

    They technically don't have to (and especially now because of DOMA), but they've done so out of convenience.

  • 12. Ann S.  |  November 1, 2010 at 4:16 am

    I'm no expert, but I'm not certain how "antiquated" the public policy exception is. It was alive and well during my lifetime — my parents' marriage was legal in some states and not legal in others we lived in, up until 1967 and Loving v. Virginia. The linked article (the part we can read, anyway) argues that the public policy exception should be unconstitutional, not that it actually has been held to be.

    My inexpert view is that under current law the portion of DOMA that allows one state not to recognize a same-sex couple's legal marriage in another state is unnecessary, since states have that power under the public policy exception.

    That's also not the portion of DOMA that the Massachusetts cases held to be unconstitutional — it was only the part that affected how the federal government treats same-sex couples who are legally married in the states in which they reside.

  • 13. Kate  |  November 1, 2010 at 4:20 am

    Ann, are your parents still alive? It would be fascinating to hear how they dealt with the marriage law's inequality.

  • 14. Ronnie  |  November 1, 2010 at 4:21 am

    Yeah it was somewhere in there alongside a marriage officiated by Elvis Presley between a man & woman that met 5 hours prior to the ceremony & got so drunk that the something borrowed was a waist basket, the something new was a hangover, & the something blue was also black from the bruise the chick got on her head when the dude banged her head into the door frame as they crossed the threshold into a a hotel room that charges by the hour & has a heart shaped bed that vibrates harder then Marky Mark in the "Good Vibrations" video…..I'm just saying….<3…Ronnie

  • 15. Ann S.  |  November 1, 2010 at 4:31 am

    They are alive and in their 80s. I know that when they were about to buy a house in Missouri, they consulted an attorney and were told that their marriage wasn't legal, but that no one was likely to bother them about it.

    After all, they were a white / Asian couple, not a white / black couple.

    If you read Loving v. Virgina, you will see that in Virginia in 1967 a marriage between a white and an Asian was a misdemeanor and voidable by the state, whereas a marriage between a white and a black was a felony and automatically void.

    I was born in North Carolina and my birth certificate says I'm "white". When I asked my mother why it doesn't mention my Asian heritage, she told me that in that time and place it was either "white" or "colored", and you wanted to be "white".

    I don't think their stay in North Carolina was terribly comfortable for them for various reasons. My dad once related a story of going into a coffee shop and sitting at the counter. The man next to him poured cream into his coffee and explained that he liked his coffee white, the way he liked people. My dad replied that the coffee looked integrated to him. I don't know if dad related what the man replied to this, but he definitely didn't like it.

    Dad also related about asking a student for his name, and being completely unable to understand the response. It sounded like Wiiiieee to him. After a few tries, he asked the student to spell his name.

    The student responded, "W-H-I-T-E".

  • 16. Kate  |  November 1, 2010 at 4:37 am

    I love the integrated coffee, Ann! Very fast thinking. Such painful times — I hope they quit having to face all that years ago. And you're correct; imagine how much worse it was for a white/black couple.

  • 17. Ann S.  |  November 1, 2010 at 4:41 am

    They quit facing that years ago because they actually divorced years ago (ironically, they separated around the time of the Loving case), for unrelated reasons.

  • 18. Kate  |  November 1, 2010 at 4:49 am

    Oh, that's definitely ironic!

  • 19. StraightForEquality  |  November 1, 2010 at 4:58 am

  • 20. Mouse  |  November 1, 2010 at 5:17 am

    You should avoid redundancy in your writing.

  • 21. Mark  |  November 1, 2010 at 5:32 am

    I may be way off base, but I was told, long ago, that when Utah wanted to join the United States, they had to end the practice of polygamy. Doesn’t that mean that the states CANNOT dictate marital policy: That the federal policy trumps every state in the union?

  • 22. Alan E.  |  November 1, 2010 at 5:54 am

    Here is the video of Rachel Maddow's "moving" interview with Joe Miller in Alaska. He has the same kind of hypocrisy (exact same topic, too) when it comes to states vs. federal issues.

    [youtube

    23. Rhie  |  November 1, 2010 at 6:14 am

    Yup. The bigamy laws are actually in reaction to the LDS of the time. The feds made marriage between one man and one woman because they didn't like the LDS and wanted to force them to conform. I think that is not something law should be based on, and that's just one of many reasons I don't like that law.

    Other reasons include that we have laws now that cover the parts of the FLDS that bother people. We have laws against marital rape and have a minimum age requirement for marriage.

  • 24. MichGuy  |  November 1, 2010 at 6:16 am

    I always wonder about the following ;

    Does anyone think that the gay marriage battle in fed courts would have more traction and weight if we simply used religion to help our cause instead of attempting to litigate based soly off of a " civil marriage definition or defense" logic with "no" focus on religious freedom supporting gay marriage. We always seem to say in our court briefs that religion is against us and is violating our rights of due process and equal protection.

    The First Amendment to the U.S. Constitution :

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

    ——————————————————

    Why do we always only state in our challanges to gay marriage bans that the ban "only" infringes upon our Due Process and Equal Protection rights.

    There are religiouns that out right support gay marrriage as being valid and as we all know marriage is seen as vital to the religious pratice of may religions so to infringe or deny marriage to a person who's religioin requires marriage to be performed would in essance be infringing upon that persons religious freedom wouldnt it ???

    Does anyone agree from a legal standpoint with me.

    I noticed in Perry v. SCHWARZENEGGER we only challenged Prop 8 on Due Process and Equal Protection grounds but we did not even mention the fact that it also could be challenged on The First Amendment religious grounds. Prop 8 in essense seems to be respecting an establishment of religious values of only religions that what to ban gay marriage and teh government cannot make a law that supports only a certain religious viewpoint over another religious veiwpoint.

  • 25. Ann S.  |  November 1, 2010 at 6:19 am

    Maybe because it opens the door to people who claim their religion requires them to marry multiple underage women based on the say-so of their prophet, regardless of the civil laws; and because of that, I think courts will strike the balance on the question of religious freedom versus the state's interest in marriage in favor of the state rather than religion.

  • 26. Kathleen  |  November 1, 2010 at 6:40 am

    The state doesn't recognize any marriage unless it first issues a marriage license. When issuing a license, the state doesn't favor one religion over another. In fact, the state is completely neutral as to the question of religion in issuing licenses; there is no religious test whatsoever. Once the state issues the license, the marriage can be solemnized through a religious or civil ceremony. If it is religious, the state doesn't favor one religion over another. Thus, there is no religious freedom argument when it comes to the state's role in marriage.

  • 27. Steve  |  November 1, 2010 at 6:42 am

    That argument cuts both ways. You can't claim that your religion deserves any special legal recognition and say that other faiths and sects can't make laws based on their beliefs.

  • 28. Manilow  |  November 1, 2010 at 7:13 am

    Ironies ABOUND!

    – Maddow – "We'll be on a bridge to nowhere." – AMAZING!
    – Miller – "I want to be straight with you." – HA! That's his individual choice.

  • 29. fiona64  |  November 1, 2010 at 7:20 am

    Remember, laws against marital rape are relatively recent. I remember the precedent-setting case, Rideout v. Rideout … because the couple lived in Oregon, where I grew up. It was all over the news.

    John Rideout's defense attorney argued that his marriage license meant that wife Greta had implied consent to sexual intercourse upon demand.

    He lost.

    Love,
    Fiona

  • 30. Alan E.  |  November 1, 2010 at 7:20 am

    It actual works against the Proponents of Prop 8 because it limits the religious arguments that they can use. We don't need to make the claim legally, just they can't use religion against us (overtly at least).

  • 31. Bennett  |  November 1, 2010 at 8:15 am

    Dont you just love the FDLS? Provides a little message confusion on that side. Does anyone know what the official FDLS position on marriage equality is?

  • 32. JonT  |  November 1, 2010 at 10:28 am

  • 33. Richard A. Walter (s  |  November 1, 2010 at 12:01 pm

    That is the thing with the pseudo-religious, pseudo-conservatives. They do not know which way they want to lean and they are like reeds in the wind. They do not see their own inconcistency, because they do not believe they are being inconsistent. They believe that by discriminating against the LGBT community and our allies, that they are "protecting" what we are not even attacking. They are truly acting like those who were born with two brain cells, and the two brain cells divorced when they were small and have not been communicating with each other since.

  • 34. Richard A. Walter (s  |  November 1, 2010 at 12:07 pm

    Forgot to click the box–AGAIN!

  • 35. Rhie  |  November 1, 2010 at 1:19 pm

    You can when their religious beliefs infringe on your civil rights, absolutely. The First Amendment only applies so long as those religious rights don't infringe on any civil right.

    The case here is about civil marriage. The Religious Right is trying to make a religious case for restricting civil rights. The law does not allow that.

    Their First Amendment rights are still intact because a church that does not want to solemnize a same sex marriage doesn't have to do so. The state does.

  • 36. Rhie  |  November 1, 2010 at 1:23 pm

    Oh, I know they are recent, but that doesn't matter. They are there. So are minimum age requirements. That covers any reasonable argument against polygamy. It makes what the FLDS does illegal. It doesn't discriminate against men and women who consent to such arrangements like bigamy laws do.

  • 37. Rhie  |  November 1, 2010 at 1:26 pm

    The FLDS? They can't even understand an equal marriage between men and women. So I highly doubt they can understand a same sex marriage. Remember, that's the cult that was led by convicted pedophile Warren Jeffs.

  • 38. RWG  |  November 1, 2010 at 2:00 pm

    An excellent article. To my understanding, DOMA is also contrary to the Full Faith and Credit clause of the 14th Amendment. On that basis alone, those parts which give one state the right to not recognize a legal marriage from another state, should be struck down. Judge Tauro did not rule on this point. I expect sometime in the near future another judge will. These cretins (the 13 AGs) are on the wrong side of history. They will be remembered as bigots who were willing to violate the Constitutional rights of a minority for their own selfish political gain. Shame on them!

  • 39. Kathleen  |  November 1, 2010 at 2:04 pm

    Full faith and credit clause is in Article IV, Section 1 of the Constitution, not part of the Fourteenth Amendment.

  • 40. Sagesse  |  November 1, 2010 at 9:38 pm

    The contrast between the 13 'protect marriage' states in their amicus brief, and the two briefs, one from Massachusetts, and the other from all the other jurisdictions that have marriage equality, is stark. The marriage equality states just say nothing bad happened here, or in the European countries that have marriage equality.

  • 41. dr. bob  |  November 2, 2010 at 2:21 am

    The state marriage license, is neutral on religion and on sexual identity. That's why they are rushing to redefine marriage as only between one man and one woman. If it were already that way, they wouldn't be rushing to change it. The marriage contract is defined by the two people who are entering it. Religion has nothing to do with it. Webster's and Wikipedia define marriage as betwen a man and woman, or man and man, or woman and man. Those states allowing same gender marriage are simply following the constitution as it exists. After Mass. and the other states, they also can not ignore same gender marriage as existing.

  • 42. Alan E.  |  November 2, 2010 at 2:49 am

    We called my chemistry teacher in high school. Her name was actually Dr. Roberts, but Dr. Bob was a much more fun nickname.

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