Friday Roundup, March 22nd

Importantly, the utter destruction of civil society in Eastern Europe was not simply a political strategy on the part of the communist parties to eliminate any possible rivals, though it was that too.  More importantly for Applebaum, totalitarian ideology dictated that the numerous groups and clubs that made up civil society not only should not exist, but that they literally could not exist. By definition, no aspect of human activity could thrive outside of the embrace of the Party.  Not only youth groups, church organizations, philanthropic foundations, and charities were deemed suspicious and subject to absorption by the Communist Party, but even such prosaic groups as chess clubs and bird-watching societies were brought within the communist fold.

The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. This subject is a state responsibility, a tradition established and validated by what can be called constitutional silence: The 10th Amendment says, “The 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.”

The amicus brief takes no position on same-sex marriage as social policy. Rather, it addresses a question that should obviate the need to address whether DOMA violates the constitutional guarantee of equal protection of the laws. The threshold question is: Does the federal government have the power that DOMA’s preamble proclaims, the power “to define and protect the institution of marriage”?

DOMA’s obvious purpose is, as the scholars’ brief says, “to reject state governments’ policy judgments.” Its purpose is to endorse, and to some extent enforce, the traditional understanding of marriage. The scholars’ brief says:

But what was the original purpose of DOMA? Is Will right in his understanding of the type of power being asserted with regard to marriage by the feds? Is the compound nature of state/federal authority in marriage policy necessarily shoved aside by DOMA in the manner asserted by the federalism brief’s authors?

Will recites the amicus brief’s claim that DOMA amounts to the federal exercise of a “general police power.” But the federal government’s authority to define the term marriage in provisions of federal law does not involve any assertion of a “general police power.” DOMA’s definition of marriage simply plugs into other congressional enactments. If those other enactments are within Congress’s power, then it is plainly within Congress’s power to define the terms it uses in those enactments. (And if any of those other enactments are outside Congress’s power, it is those enactments, not DOMA, that fall.)

Will takes seriously a hypothetical offered by law professor Ernest Young (the “principal author of the federalism brief”) that aims to show how Congress could abuse its power to define marriage in a way that “would wreak [chaos] in the administration of state programs” and put undue “pressure … on states not to experiment with divorce law.”. . . Further, there is zero evidence that DOMA has the effect of Young’s hypothetical statute. The fact that nine states (as well as the District of Columbia) have adopted same-sex marriage laws since DOMA’s enactment, and that several others are considering doing so, disproves the brief’s absurdly hyperbolic claim that DOMA “interferes with the States’ exercise of their reserved power to define marriage for their own purposes” to such an extent that it “discourages States from experimenting in this area at all.”