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«THE “FEDERAL LAW OF MARRIAGE”: DEFERENCE, DEVIATION, AND DOMA W. BURLETTE CARTER I. Introduction II. American Notions of “Local” Matters A. Origins 1. The Colonial Experience 2. The Notion ...»

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347. The Virginia Supreme Court in Loving relied primarily upon its earlier holding in Naim v. Naim. That case held that the policy behind the anti-miscegenation statute was to prevent interracial procreation and the creation of a “mongrel breed of citizens.” Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955), overruled by Loving, 388 U.S. at 1. See also Loving v. Virginia, 147 S.E.2d 78 (Va. 1966) (stating that Naim is controlling and there is no need to reconsider it), rev’d by Loving, 388 U.S. at 1 (referring to state’s desire not to create a “mongrel breed of citizens” to and to preserve white supremacy).

Loving was but one brick in a large complex of race discrimination and indeed, but considered out of context, the right to marry white people was among the least of black people's historical racial hurdles. The case did not, of course, open marriages' doors for either black or interracial same-sex couples.

2013] THE FEDERAL LAW OF MARRIAGE 785 battle to a simple uncomfortable question: Which white men have the most economic rights? Is it those who prefer the company of women? Or is it those who prefer the company of men?348 One could argue that same-sex couples who are parents under state law should have the benefit of intermediate scrutiny when procreation is the claimed reason for the benefit. Under this view the denials of ERISA, Social Security benefits and income tax benefits mentioned in Part V(B) should be subject to the intermediate review standard for married same-sex couples who are parents under state law. The issue requires more attention than this article can provide. However, brief treatment can outline some of the issues.

Arguments in favor are that the federal government has traditionally incorporated state law on parenting definitions, the federal government does benefit when two parties rather than one commit to supporting a child as parents. Moreover the economics of a family unit might still dictate that one parent will need to disproportionately tend to the child’s needs for the entire unit to move forward most efficiently, rather than each taking the economic hit of parenting equally. Some same-sex parents do have natural births although always involving third parties. Notably, benefits allegedly targeted for procreation go to opposite sex parents who adopt and use reproductive technologies toward parenthood as well as those who never have procreated and cannot procreate. And finally, gays and lesbians have faced opposition as parenting couples, not merely as individuals, even when they have taken the traditional path of being adoptive parents.

On the other hand, there are also arguments against intermediate scrutiny as the standard of review for marriage-related branch benefits relating to parenting. Traditionally, married parents under law commit to supporting not only the child but also each other. It might be argued that the presence of the biological tie and the biological imbalance that normally exists in the heterosexual couple—and even past gender discrimination within heterosexual marriage—are key assumptions in statutes that provide or impose marital

348. Lesbian scholars have criticized the battle for “marriage” arguing that a marriage-based regime for social support will not protect all families or meet the needs of all gay and lesbian couples. See Paula L. Ettlebrick, Domestic Partnership, Civil Unions, or Marriage: One Size Does Not Fit All, 64 Alb. L. Rev. 905 (2001) (noting same-sex parenting always requires three people and arguing for recognition of broader relationships other than marriage and questioning attempt to mainstream gay and lesbian families); Paula L. Ettlebrick, Since When is Marriage a Path to Liberation?, in SAME-SEX MARRIAGE: THE MORAL AND LEGAL DEBATE (Robert M. Baird & Stuart E.


VALUING ALL FAMILIES UNDER THE LAW (2008) (arguing gay and lesbian couples are no more disadvantaged by a marital regime for benefits than other non-married groups).

Other authors have similarly criticized using marriage and "intimacy" as a basis for affording family benefits. See e.g., MARTHA FINEMAN, THE NEUTURED MOTHER: THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) (asking why marriage or intimacy should be the gateway to providing benefits).

786 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4 obligations or benefits tied to parenting through marriage (as opposed to providing the benefits outside of marriage). Moreover, when the issue is procreation-related benefits based on a Congressional assumption that having biological children within a marriage is preferred, with respect to branch benefits same-sex couples do not stand much differently than committed unmarried couples or single parents. On the question of over-inclusion, some heterosexuals who use surrogates or other reproductive technologies also have children or might have them biologically. Notably, we are speaking here of the standard of scrutiny, not of the ultimate decision on whether or not same-sex couples should be treated exactly like opposite sex ones. I conclude that the rational basis standard should be considered sufficient – for now.

Moreover, as I have discussed in Part V, even modern statutes appear to be designed to cover the negative economic effects of a pregnancy as to which both parties played a central biological role. When the biological imbalance assumed by the statutes is not present, the parties have greater bargaining power vis á vis each other with respect to procreation. With lesbians, if birth is their choice, either can have the child. With gay men, because neither forgoes economic activity to give birth, they have greater economic freedom to choose who among them will be the primary caretaker. Moreover, as discussed in Part V(B)(2), rational basis scrutiny has been applied to denials of benefits to unmarried heterosexual biological parents under state law who without question are biologically unbalanced vis á vis each other, may even be cohabitating, and who may be committed to parenting. In those cases, the man does not legally commit to financially supporting the mother though one pregnancy or several that he may well have consented to. Courts generally enforce a father’s commitment to supporting the child, not the mother. Surely, using heterosexuality as a marker is over-inclusive. The over inclusion however, could be said to be a function of a legal assumption as to the unpredictability of procreation, a legal indulgence of the fertile octogenarian fiction, the impracticality of testing for procreation given privacy interests, and possibly a recognition of the long term financial impact of procreation. It is not a conclusion that how one procreates or whether one procreates does not matter.

It can reasonably be argued, especially given the newness of the issue, that the federal government has a right to weigh in on how the federal tax dollars it confers affect the third party rights that are regularly at issue in reproductive technology cases for both same-sex couples and for heterosexual ones, the trends in reproductive technologies themselves, and as on how federal funding will affect the rights of the children or potential children at issue. Finally, one could argue that parenting discrimination is a matter not specific to same-sex couples or to marriage, and responses should, therefore, be handled outside of it.

It is true that sexism has long been and continues to be perpetrated through marriage policy. However, there is zero evidence that including same-sex couples who did not suffer that history of marriage as a vehicle for gender 2013] THE FEDERAL LAW OF MARRIAGE 787 discrimination as same-sex couples will alleviate gender discrimination within and through marriage. Indeed, one could argue that policies that make the gender discrimination imbalance less invisible also make it easier to accomplish discrimination.

The author does not dispute that same-sex couples have been discriminated against in parenting or that they can make wonderful parents. But other couples excluded from procreation-related benefits (the unmarried, in particular) and their children have also faced unique historical discrimination with respect to asserting their parental rights. A rational basis standard for dispensing of benefits through marriage would give Congress more freedom to consider the rights of all couples excluded from marriage’s non-familial benefits.

Moreover the standard would not preclude a challenge that Congress should have provided certain procreation-based benefits outside of marriage. So long as the United States continues to use marriage as a primary means of supporting natural procreation, I believe that Congress is entitled to use heterosexual procreation as a lane marker for procreation-related benefits, subject to a rational basis test. Indeed, the founders likely did not have in mind many of the reproductive technologies that can result in parenthood under some state laws.

C. The Plenary Power Exception If the Constitution places exclusive or plenary power in the federal government to make the relevant decision, even if the restriction directly affects family rights, the test must, of course, be rational basis. Courts are clear that in such cases a finger should be placed on the scale in favor of federal decision-making even when suspect classes are otherwise involved.349 Three obvious instances of plenary power come to mind: immigration, the U.S.

military, and Congress’ power over American Indian Affairs.

D. The Difficulty of Line Drawing Surely some cases of line drawing to identify whether the denied right affects a marital family right or is a merely a branch right may be harder than in others. Every federal marital benefit in some way affects the family. In close cases, courts should employ a balancing test to decide the primary operation of the right. A court could also decide that some rights should be treated as affecting family rights for some purposes but not others, or that government may not block all benefits, but it may offer a different level of economic benefit based upon constitutionally defensible public priorities.

Another case of line drawing difficulty may arise in determining whether or

349. E.g., U.S. v. Mirza, 454 Fed. Appx. 249 (5th Cir. 2011), 132 S. Ct. 1725 (2012) (discussing immigration); United States v. Llamas-Gonzalez, 414 F. Appx. 936 (9th Cir. 2011), cert. denied, 131 S. Ct. 3047 (2011) (discussing immigration); Delaware Tribal Business Committee v. Weeks, 470 U.S. 73 (1977) (discussing Indian affairs);

Morton v. Mancari, 417 U.S. 535, 555 (1974) (discussing Indian affairs).

788 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4 not a statute advances procreation—and how. This determination will often be the tipping point on rational basis review. It may lead to exclusion of same-sex couples that do not have children or the inclusion of those who do. The question of who is a parent will also likely be one that will invite controversy, especially in the case of reproductive technologies in which third party rights are involved. Congress and the Courts will have to sort out when a statute is merely advancing male hegemony and/or sexual orientation discrimination and when it advances procreation or another legitimate state interest.

E. Is the Federal Government Required to Use The Word “Marriage?” This analysis does not require that the government use the term marriage.

The federal government obviously has the right to define the terms to be used in its own statutes. DOMA actually does not prevent the government from using a neutral term for all intimate relationships simply for the purpose of designating who gets federal benefits. Take for example, a term like “federally recognized intimate partnerships.”350 However, if Congress used a single term, if it wished to preserve a procreation-based regime, it would still have to create subclasses. That could be done on a basis other than sexual orientation, but I cannot see that the division with respect to branch rights is compelled.

Moreover, it is a fact that marriage is uniquely a state-created notion.

Employing that name at the federal level may help states that embrace samesex marriage, but it could also negatively affect the rights of those states that have declined to do so, including those that use alternative names for the relationships.

In fact, not being wed to the term “marriage” for same-sex couples will also allow government to expand some benefits that are currently marriage related to those couples in jurisdictions that do not recognize marriage. The general principle of following state law in making federal policy on family matters, could justify the federal government recognizing marriage substitutes that some states have adopted in lieu of same-sex marriage such as civil unions and domestic partnerships. Domestic partnerships run the gamut in the degree of rights they allow, but they generally allow at least some rights that mirror family rights, even if they deny branch incidents. The federal government might even be able to base family-related benefits upon contracts creating ties that states have agreed to recognize in lieu of marriage if such contracts are

350. At oral argument in Windsor, Justice Alito raised a similar question adding to his hypothetical that the government defines the word to include same-sex couples.

JUSTICE ALITO: Well, let me get to the question I asked Mr. Clement. It just gets rid of the word “marriage,” takes it out of the U.S. Code completely.

Substitutes something else, and defines it as same-sex—to include same-sex couples. Surely it could do that.

Transcript of Oral Argument at 99, Windsor v. United States (No. 12-307) (U.S. filed Mar. 27, 2012) available at http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument= 12-307.

2013] THE FEDERAL LAW OF MARRIAGE 789 designed to create the types of legal relationships that are consistent with the federal statutory purposes establishing the benefit.


How does this scheme relate to the three DOMAs? One DOMA bundles all marriage rights together, making them impervious to same-sex couples. This is the DOMA that has dominated attention in same-sex marriage litigation.

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