Dumb and DOMA: Why the defense of marriage act is unconstitutional

Iowa Law Review

Volumn 83, Issue 1, 1997, Pages 1-33

  Koppelman, Andrew ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 22044458379     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (192)

1. The bill passed the House by a vote of 342-67 on July 12, 1996. 142 Cong. Rec. H7505-06 (daily ed. July 12, 1996). It passed the Senate by a vote of 85-14 on September 10, 1996. 142 Cong. Rec. S10129 (daily ed. Sept. 10, 1996).
2. The President signed the bill at 12:50 a.m. on Sept. 21, 1996. Peter Baker, President Quietly Signs Law Aimed at Gay Marriages, Wash. Post, Sept. 22, 1996, at A21.
3. "Marry" is a term of art, referring to the capacity to contract a marriage that will be recognized by positive law. Marc Fajer observes that some same-sex couples already have engaged in private marriage ceremonies and notes that these couples "seek not so much the right to marry as the right to have their (already existing) marriages treated equally." Marc A. Fajer, Toward Respectful Representation: Some Thoughts on Selling Same-Sex Marriage, 15 Yale L. & Pol'y Rev. 599, 604 (1997).
4. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
5. For a defense of the court's reasoning, see Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994).
6. Baehr v. Miike, No. Civ. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996).
7. Ken Kobayashi, State Appeal on Same-Sex a Long Shot, Honolulu Advertiser, Dec. 5, 1996, at 1 (quoting Deputy Attorney General Rick Eichor).
8. See H.R. 117, 19th Leg. (Haw. 1997).
9. Kim Murakawa, No Same-Sex Ruling in Sight, Honolulu Advertiser, July 31, 1997, at B4.
10. One poll, in July, 1995, found that 1/3 of Americans think that two people of the same sex should be able to legally marry if they love each other, while nearly 2/3 are opposed to same-sex marriage. The opposition is substantially weaker among younger people. Fifty-six percent of 18- to 24-year-olds are in favor. Jeff Holyfield, National Poll: A Third of Voters Say Same Sex Marriages Should Be OK, July 6, 1995, available in 1995 WL 4395753;
11. see also AP, One-Third of Voters Support Gay Unions, San Francisco Examiner, July 6, 1995, at A8 (briefly summarizing survey).
12. Conflict of laws is the area of law involving the determination "whether or not and, if so, in what way, the answer to a legal question will be affected because the elements of the problem have contacts with more than one jurisdiction." Russell J. Weintraub, Commentary on the Conflict of Laws 1 (3d ed. 1986).
13. See infra text accompanying notes 56-59 (describing interstate marriage recognition rules); infra text accompanying notes 16-24 (listing federal statutes that, before DOMA, relied on state law definitions of marriage).
14. H.R. 3396, S. 1740, 104th Cong. (1996).
15. 1 U.S.C. § 7 (1997).
16. Evan Wolfson & Michael F. Melcher, The Supreme Court's Decision in Romer v. Evans and Its Implications For the Defense of Marriage Act, 16 Quinnipiac L. Rev. 217, 219 (1996).
17. 11 U.S.C. § 523(a)(5) (1994).
18. 5 U.S.C. § 8901 (1994).
19. 5 U.S.C. § 8701(d)(1)(A) (1994).
20. 5 U.S.C. §§ 8101-8151 (1994).
21. 17 U.S.C. § 304 (1994).
22. 12 U.S.C. § 1701j-3(d) (1994).
23. 29 U.S.C. § 2612(a)(1)(C) (1994).
24. 42 U.S.C. §§ 401-433 (1994).
25. The Ninth Circuit has held that spouse status under the Immigration and Naturalization Act cannot be based on a marriage of two men even if the marriage is valid under state law. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). The court's reasoning, however, relied on the fact that the INA itself excluded homosexuals from admission to the U.S. This provision of the INA was repealed by Congress in 1990. Id. at 1040. See Congressional Research Service, American Law Division, Compilation of Selected Federal Programs That Could Be Affected By The Legalization of Same-Sex Marriage (June 25, 1996), at 12.
26. have relied on this memorandum throughout this paragraph. Since this paper was first written, the General Accounting Office has compiled a much more extensive list of affected federal benefits. See U.S. General Accounting Office, Defense of Marriage Act (Jan. 31, 1997).
27. A number of commentators have disputed this, claiming that Congress has a constitutional obligation to defer to state definitions of marriage. See Mark Strasser, Legally Wed: Same-Sex Marriage and the Constitution 147-52 (1997);
28. Evan Wolfson & Michael F. Melcher, Constitutional and Legal Defects in the "Defense of Marriage" Act, 16 Quinnipiac L. Rev. 221, 231-238 (1996);
29. Evan Wolfson & Michael F. Melcher, DOMA's House Divided: An Argument Against the Defense of Marriage Act, Fed. Law., Sept. 1997, at 30, 33-34.
30. The most careful presentation of this argument is that by Scott Ruskay-Kidd, who observes that family-law matters are traditionally reserved to the states. "The federal government may be acting within the bounds of its authority when it structures the consequences that follow from marriage, but when it purports to answer the question of marital status itself, it infringes upon the most fundamental state prerogative." Scott Ruskay-Kidd, Note, The Defense of Marriage Act and the Overextension of Congressional Authority, 97 Colum. L. Rev. 1435, 1481-82 (1997).
31. This exaggerates what DOMA does. No state is prevented from defining marriage as it likes for its own purposes. Only the federal incidents of marriage are withheld as a result of DOMA's definition. It is unlikely that nonrecognition of same-sex marriage in the distribution of federal benefits would pressure states to change their laws. Even if it did, in other contexts the Court has been surprisingly deferential to uses of the spending power that put great pressure on areas traditionally reserved to the states. See Lynn A. Baker, Conditional Federal Spending After Lopez, 95 Colum. L. Rev. 1911 (1995).
32. Ruskay-Kidd also relies on the Court's standard for resolving conflicts between state and federal law. Where state family law comes into conflict with a federal statute, the Court inquires whether Congress has "positively required by direct enactment" that state law be pre-empted, and whether applying state law would do "major damage" to "clear and substantial" federal interests. Ruskay-Kidd, supra, at 1478 (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)). The same test is relied on in Rose v. Rose, 481 U.S. 619, 625 (1987), Ridgway v. Ridgway, 454 U.S. 46, 54 (1981), and McCarty v. McCarty, 453 U.S. 210, 220 (1981). Ruskay-Kidd concludes that DOMA fails the second prong of this test, because recognition of same-sex marriage would do major damage to the goals of few, if any, of the statutes covered by DOMA. Id. at 1480-81. However, the Hisquierdo test has never been described by the Court as a constitutional limitation on Congress. It may merely be a guide to statutory construction. In practice, the "major damage" prong has been toothless; it has not even had much influence on the interpretation of any federal statute. See James A. Riddle, Preemption of Reconcilable State Regulation: Federal Benefit Schemes v. State Marital Property Law, 34 Hastings L.J. 685, 694-706 (1983). Ruskay-Kidd's argument presupposes that DOMA's purpose, preventing federal recognition of same-sex marriages, is not itself "clear and substantial." If, however, the law's purpose is illegitimate, the law is already invalid. There is no need to rely on the family law preemption cases.
33. The Court has held that the Due Process Clause of the Fifth Amendment constrains Congress in the same way that the Equal Protection Clause of the Fourteenth Amendment constrains the states. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214-19 (1995); Bolling v. Sharpe, 347 U.S. 497, 500 (1954).
34. Loving v. Virginia, 388 U.S. 1 (1967).
35. A number of federal courts have reasoned that because the Supreme Court held that a law criminalizing homosexual sodomy does not violate the Due Process Clause in Bowers v. Hardwick, 478 U.S. 186 (1986), it would be anomalous to deem gays a protected class under the Equal Protection Clause. This is a non sequitur. It implicitly assumes that if there is any provision of the Constitution that a law does not violate, the law cannot violate any other constitutional command either. See Andrew Koppelman, Gaze in the Military: A Response to Professor Woodruff, 64 UMKC L. Rev. 179, 187-88 (1995) (citing cases).
36. 116 S. Ct. 1620 (1996).
37. The full text of the amendment follows: No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing. Id. at 1623.
38. Id. at 1627.
39. Id. at 1628 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)). It appears that "careful consideration" is a synonym for heightened scrutiny.
40. Id. at 1629.
41. Romer, 116 S. Ct. at 1626.
42. Id. at 1629.
43. Id. at 1626. Such a universal license to discriminate against gays "would compound the constitutional difficulties the law creates." Id. The majority opinion argued with Justice Scalia's dissent about whether a saving construction, eliminating the unconstitutional applications, had authoritatively been placed upon Amendment 2 by the Colorado Supreme Court. Id.
44. Id. at 1629.
45. Id. at 1629.
46. Romer, 116 S. Ct. at 1628 (quoting Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
47. This reading of Romer is elaborated and defended in Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 Wm. & Mary Bill of Rts. J. 89 (1997).
48. Romer, 116 S. Ct. at 1628.
49. The closest thing to such a justification that was offered is that many such policies give married couples claims on the federal fisc, and that recognizing same-sex marriages would cost the government money. Senator Phil Gramm warned that the "failure to pass this bill . . . will create . . . a whole group of new beneficiaries - no one knows what the number would be - tens of thousands, hundreds of thousands, potentially more - who will be beneficiaries of newly created survivor benefits under Social Security, Federal retirement plans, and military retirement plans." 142 Cong. Rec. S10106 (daily ed. Sept. 10, 1996). Such claims sometimes took a hysterical tone: Senator Robert Byrd said that he did "not think . . . that it is inconceivable that the costs associated with such a change could amount to hundreds of millions of dollars - if not billions - of Federal taxpayer dollars." Id. at S10111. I am grateful to Bob Postawko for bringing these statements to my attention.
50. Romer v. Evans, 116 S. Ct. 1620, 1628 (1996).
51. Id. at 1628-29.
52. See generally Strasser, supra note 25, at 139, 152; Wolfson & Melcher, supra note 15; Ruskay-Kidd, supra note 25, at 1444.
53. House Judiciary Committee, Report to Accompany Defense of Marriage Act, H.R. Rep. No. 104-664, at 29 (1996) [hereinafter House Report], reprinted in 1996 U.S.C.C.A.N. 2905, 2934.
54. House Report, supra note 46, at 29;
55. Hearing on S.1740 Before the Senate Comm. on the Judiciary, 104th Cong. 27 (1996) (statement of Lynn D. Wardle) [hereinafter Wardle Statement].
56. Wardle Statement, supra note 47, at 27 n.4.
57. Hearing on S.1740 Before the Senate Comm. on the Judiciary, 104th Cong. 18 (1996) [hereinafter Senate Hearing] (statement of Senator Don Nickles, one of the original sponsors of DOMA).
58. Of course, the status quo changes as soon as it becomes necessary to declare it. Mae Kuykendall has noted the rich irony in DOMA, that "conservative forces, in attempting to strengthen marriage, have sponsored a highly visible statement that the meaning of marriage is in dispute." Mae Kuykendall, An Essay on Defined Terms and Cultural Consensus, 13 J.L. & Pol. 199, 200 n.4 (1997). Thus, in the debate over DOMA, "Senators give agitated speeches explaining that, since everyone agrees with them, there is nothing to be agitated about, except the urgent need for legislation to stop people from disagreeing with them." Id. at 205.
59. Romer v. Evans, 116 S. Ct. 1620, 1629 (1996).
60. The claim that Hawaii's recognition of same-sex marriage is unprecedented is often made. It is, however, more accurate to say that same-sex marriage has never been officially recognized as such in the United States. Many cultures, including Native American tribes that originally occupied what is now the United States, have recognized same-sex marriages. See William N. Eskridge, Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment 15-50 (1996);
61. William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 Va. L. Rev. 1419 (1993) (both citing recognition of same-sex unions in ancient Egypt and Mesopotamia, classical Greece, pre-Christian Rome, and Native American, African, and Asian cultures). The absence of such recognition anywhere in the world today is hardly a manifestation of the shared ancient wisdom of humankind. Militarily useful munitions were first developed in the Christian nations of Western Europe, which interpreted their religious traditions as condemning homosexuality and which soon became colonial powers. They had no scruples about imposing their mores on the rest of the world. These are mere accidents of history, devoid of moral significance. If there is any measure on behalf of gays that is genuinely unprecedented, it is antidiscrimination protection of the kind that provoked the passage of Amendment 2. "The first municipal ordinances protecting against discrimination on the basis of sexual orientation were adopted in the early 1970s and in 1983 Wisconsin became the first state to pass a gay rights law."
62. Cases and Materials on Sexual Orientation and the Law 469 (William B. Rubenstein ed., 2d ed. 1997).
63. See Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 Stan. L. Rev. 1105, 1113 (1989).
64. Romer, 116 S. Ct. at 1628.
65. Id. (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).
66. 28 U.S.C. § 1738C (Supp. 1997).
67. U.S. Const. art. IV, § 1.
68. Loving v. Virginia, 388 U.S. 1, 10-11 (1967).
69. See generally Andrew Koppelman, Same-Sex Marriage, Choice of Law, and Public Policy, 76 Tex. L. Rev. 921 (1998)
70. [hereinafter Koppelman, Same-Sex Marriage].
71. The applicability of this point depends on the stipulation that the Constitution permits states to refuse to license same-sex marriages. Although I have argued the opposite and have not changed my mind, see Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994), I will so stipulate for present purposes. If the Constitution requires every state to recognize same-sex marriage, then diversity with respect to this issue is impermissible and the conflicts issue disappears.
72. It is unclear from the legislative history whether Congress intended to influence states' deliberations on whether to recognize same-sex marriages. The House Judiciary Committee report says repeatedly that each state will remain free to decide this policy issue for itself. See, e.g., House Report, supra note 46, at 23-24. The report also indicates, however, that the legislation will provide "assistance" to those states that have no declared public policy against recognition of same-sex marriage. Id. at 10 n.33.
73. See U.S. Const. amend. XIV ("nor shall any State deprive any person of life, liberty, or property, without due process of law"); Sun Oil v. Wortman, 486 U.S. 717, 729-30 n.3 (1988); see also id. at 735 n.2 (Brennan, J., concurring in part and concurring in the judgment); Allstate Insurance Co. v. Hague, 449 U.S. 302, 308 n.10 (1981) (plurality opinion). The Court's position is difficult to defend, since due process gives no weight to the need for national uniformity, which is a central purpose of the Full Faith and Credit Clause. See Weintraub, supra note 11, at 550; William M. Richman & William L. Reynolds, Understanding Conflict of Laws 282-83 (2d ed. 1993);
74. see also Lea Brilmayer, Conflict of Laws: Cases and Materials 439 (4th ed. 1995) (noting the "interesting coincidence that these two rather different-sounding clauses just happen to turn out to have the identical scope in this context").
75. Geoffrey C. Hazard et al., Cases and Materials on Pleading and Procedure: State and Federal 377 (7th ed. 1994);
76. see also Eugene F. Scoles & Peter F. Hay, Conflict of Laws 94-101 (2d ed. 1992).
77. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
78. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-313 (1981)).
79. Phillips Petroleum, 472 U.S. at 818, illustrates the difference between the two tests: jurisdiction over the parties was upheld, but the forum was not permitted to apply its law to . some of the transactions at issue in the suit. It is also possible for application of a given state's law to be justified, but for that state to lack jurisdiction over all the parties. Hanson v. Denckla, 357 U.S. 235, 253-54 (1958).
80. One of DOMA's principal scholarly supporters has conceded that if a case arose "in which the second state was totally without any significant contacts or strong public policy [sic], and the only interested state recognized same-sex marriage, full faith and credit might arguably preclude nonrecognition." Wardle Statement, supra note 47, at 35 n.51.
81. Similarly, the House committee report concedes that "if - notwithstanding a sister State's policy objections to homosexual 'marriage' - there is some constitutional compulsion (whether under the Due Process Clause or otherwise) to give effect to a judicial order, Section 2 obviously can present no obstacle to such recognition." House Report, supra note 46, at 30.
82. Although I would love to take credit for devising these, both were suggested in conversation by Mark Gergen. I have filled in some details.
83. See Grace v. MacArthur, 170 F. Supp. 442 (E.D. Ark. 1959) (upholding service when made aboard a non-stop airline flight over, but not touching down within, the forum state); see also Ga. Code Ann. 9-11-4(f) (1997) ("All process may be served anywhere within the territorial limits of the state . . . ."); Burnham v. Superior Court, 495 U.S. 604 (1990) (upholding constitutionality of jurisdiction over any party who is served with process while voluntarily present in forum state); Weintraub, supra note 11, at 150 ("Generally . . . transient physical presence without more has been sufficient for judicial jurisdiction").
84. See Ga. Code Ann. 19-3-3.1 (1997): (a) It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state. (b) No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this state and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such marriage.
85. This is a big "if." These are heuristic hypotheticals, and I do not mean to insult the courts of Georgia by implying that they would cooperate with these disgusting stratagems. In other contexts, Georgia courts have not applied the public policy exception to ordinary choice-of-law principles when adjudicating transactions that occurred entirely outside of that state. See John Bernard Corr, Modern Choice of Law and Public Policy: The Emperor Has the Same Old Clothes, 39 U. Miami L. Rev. 647, 664-66 (1985) (collecting cases).
86. DOMA is a proviso to the full faith and credit statute, which provides generally that each state's "Acts, records and judicial proceedings . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State, Territory, or Possession from which they are taken." 28 U.S.C. § 1738 (1994). To the extent that DOMA is inapplicable, this statute remains in force.
87. On false conflicts in interest analysis, see Lea Brilmayer, Conflict of Laws 51 (2d ed. 1995).
88. See INS v. Cardoza-Fonseca, 480 U.S. 421, 452-53 (1987) (Scalia, J., concurring) ("Judges interpret laws rather than reconstruct legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent.").
89. See Weintraub, supra note 11, at 525: Choice of law is likely to run afoul of due process standards only in . . . two relatively narrow circumstances . . . First, a person who plans his conduct injustifiable reliance on the law of one state, should not have his reliance frustrated by the application of the law of another state if, at the time the person acted, the other state did not have a contact with the parties or with the transaction that would make use of its law reasonable. Second, even though conduct has not been shaped by expectations as to governing law, there will be rare instances in which a state has so little contact with the parties or with the transaction that application of its law will be arbitrary and therefore violate due process.
90. Both the Fifth Amendment, which restrains the federal government, and the Fourteenth Amendment, which restrains the states, provide that no person shall be deprived "of life, liberty, or property, without due process of law . . . ." U.S. Const. amends. V, XIV.
91. DOMA's disregard of contacts with the forum state is also noted by Ruskay-Kidd, supra note 25, at 1447-49.
92. Evan Wolfson, Winning and Keeping Equal Marriage Rights: What Will Follow Victory in Baehr v. Lewin? (Feb. 16, 1996), at 4,
93. cited in House Report, supra note 46, at 7-9,
94. and in Wardle Statement, supra note 47, at 31-32.
95. Wolfson's memo is reprinted in Hearing on DOMA Before the House Comm. on the Jud., 104th Cong. 14-31 (1996).
96. "As matters stand, the Full Faith and Credit Clause means almost nothing, and state courts can often evade the little that it does mean." Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 258 (1992);
97. see generally Louise Weinberg, Choice of Law and Minimal Scrutiny, 49 U. Chi. L. Rev. 440, 457 (1982) (arguing that full faith and credit limitation on choice of law is, "for all practical purposes, extinct").
98. The Supreme Court has held that the Full Faith and Credit Clause requires the recognition of a sister-state money judgment even if the underlying cause of action could not have been brought in the forum. Baker v. General Motors, 118 S. Ct. 657, 663-664 (1998); Fauntleroy v. Lum, 210 U.S. 230, 238 (1908). Mark Strasser's recent treatment of full faith and credit in the context of same-sex marriage is a muddle, in large part because he appears not to understand this basic distinction between judgments and laws. Mark Strasser, Legally Wed: Same-Sex Marriage and the Constitution 101-58 (1997). See, for example, id. at 104, where, in a single paragraph, "judgments," "obligations," and "debts" are treated as if they were constitutional equivalents.
99. Scoles & Hay, supra note 62, at 950.
100. Brilmayer, supra note 72, at 298-99 (quoting Stoll v. Gottlieb, 305 U.S. 165, 172 (1938)). The inapplicability of public policy to judgments can be explained on the basis of the universal rule of the common law that a cause of action for money "merges" in the judgment and that a judgment for money - the underlying cause of action now having disappeared - cannot offend the local public policy of the recognizing jurisdiction. It is important to stress again, however, that "merger" is but a short-hand statement of the pervasive policy of preclusion. Scoles & Hay, supra note 62, at 980.
101. See supra note 71 (quoting the general rule of full faith and credit to which DOMA is an exception).
102. Defense of Marriage Act, 28 U.S.C. § 1738C (Supp. 1997).
103. I assume, for purposes of this hypothetical, that the new forum has sufficiently significant contacts with the underlying transaction that its application of its own law does not violate due process. See supra notes 61-72 and accompanying text.
104. This conclusion follows from the rule "that the last judgment - of several and possibly inconsistent judgments - is the one entitled to Full Faith and Credit in subsequent litigation even if such a last judgment itself erroneously failed to accord Full Faith and Credit to an earlier judgment." Scoles & Hay, supra note 62, at 955. The strategy described in the text is made possible by the interaction of that rule with DOMA, under which each of the later courts in the series would not misconstrue its obligations under the Full Faith and Credit Clause, but rather would recognize that Congress had authoritatively declared that the earlier judgments were not entitled (at least as a matter of supreme federal law) to full faith and credit.
105. The Romer Court, Janet Halley pertinently observes, did not attribute overt animosity to the voters of Colorado, but rather "a kind of blithe insouciance about the range of their action." Janet E. Halley, Romer v. Hardwick, 68 Colo. L. Rev. 429, 451 (1997).
106. Deborah M. Henson, Will Same-Sex Marriages Be Recognized in Sister States? Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriages Following Hawaii's Baehr v. Lewin, 32 U. Louisville J. Fam. L. 551, 588 (1993-94);
107. Habib A. Balian, Note, 'Til Death Do Us Part: Granting Full Faith and Credit to Marital Status, 68 S. Cal. L. Rev. 397 (1995).
108. This stratagem has been proposed before, as a way of thwarting the Southern states' nonrecognition of interracial marriages, but it does not appear ever to have been tried. Albert A. Ehrenzweig, Miscegenation in the Conflict of Laws: Law and Reason Versus the Restatement Second, 45 Cornell L.Q. 659, 662 (1960).
109. House Report, supra note 46, at 30.
110. Id. The Report goes on to note, however, that the Act's effect is merely to authorize a sister State to decline to give effect to such orders; it does not mandate that outcome, and, indeed, given the special status of judicial proceedings, the Committee expects that States will honor judicial orders as long as it can do so without surrendering its public policy against same-sex "marriages." Id. States would, of course, have unfettered discretion to determine how sweeping their public policies were in such cases.
111. Restatement (Second) of Judgments § 76 cmt. a (1982): Generally speaking, a judgment is of no legal concern to a person who is neither a party to it nor otherwise bound by it under the rules of res judicata. A judgment determines issues and claims only among those who are so bound and does not preclude another person from litigating the same issues afresh, nor does it preclude him from enforcing claims that are inconsistent with those that have been adjudicated. So far as such a third person is concerned, a judgment between others has no greater effect than a contract or conveyance between others. Ordinarily, therefore, he can simply ignore it in connection with the assertion of his own rights. See also Baker v. General Motors, 118 S. Ct. 657, 666 n.10 (1998) ("In no event, we have observed, can issue preclusion be invoked against one who did not participate in the prior adjudication."). Even if a person would ordinarily be bound by a judgment, [i]t is clear that the represented person should be able to set aside a judgment that was procured by collusion between the person representing him and the opposing party. No worthy interest is served by sustaining such a judgment, and both private and public interests would be violated if the judgment were given effect in the face of such an attack. Restatement (Second) of Judgments § 75 cmt. c (1982). David Currie has recently observed that foreign judgments are entitled to conclusive effect precisely because their adversarial nature guarantees that the party who stands to benefit under the appropriate law has the necessary incentive to insist on its application. These considerations do not apply to garden variety administrative actions, such as marriages; they similarly do not apply to collusive judgments. David P. Currie, Full Faith and Credit to Marriages, 1 Green Bag 2d 7 (1997).
112. Cf. Robert A. Leflar et al., American Conflicts Law 15 (4th ed. 1986) ("It is unlikely that any American state court would attempt to apply its own law, or any preferred law, as completely as federal law would allow. There is a body of common law precedent that courts do not ignore in conflicts cases."); Louise Weinberg, supra note 78, at 487 ("[A] state is not without power today to take the 'moderate and restrained' view of the reach of its own law that the Supreme Court would not force it to take.").
113. House Report, supra note 46, at 25-29. I shall hereafter refer to this provision as the "Effects Clause."
114. Congress has rarely made use of these powers, and there is scant Supreme Court authority on their scope. See Gina Marie Stevens, Congressional Research Service, American Law Division, Interstate Marriage Recognition and the Defense of Marriage Act (June 7, 1996), at 8-11.
115. House Report, supra note 46, at 25.
116. Letter from Laurence H. Tribe to Edward M. Kennedy (May 24, 1996), in 142 Cong. Rec. S5932 (daily ed. June 6, 1996)[hereinafter Tribe Letter]. (A shorter version of this document appeared as Toward a Less Perfect Union, N.Y. Times, May 26, 1996, § 4, at 11.)
117. To the same effect, see the testimony of Cass Sunstein in Senate Hearing, supra note 49, at 43; Ruskay-Kidd, supra note 25, at 1449-67.
118. U.S. Const. amend. XIV.
119. See Tribe Letter, supra note 95, at S5933: In perhaps the closest analogy, the Supreme Court has interpreted another of the Constitution's few clauses expressly authorizing Congress to enforce a constitutional mandate addressed to the States to mean that Congress may effectuate such a mandate but may not "exercise discretion in the other direction [by] enact[ing]" statutes that "dilute" the mandates self-executing force as authoritatively construed by the Supreme Court. Katzenbach v. Morgan, 384 U.S. 641, 651 n.10 (1966) (Section 5 of the Fourteenth Amendment). A similar principle must guide interpretation of the Full Faith and Credit Clause, whose text leaves no real doubt that its self-executing reach, as authoritatively determined by the Supreme Court, may not be negated or nullified, in whole or in part, under the guise of legislatively enforcing or effectuating that clause.
120. For example, the Clause does not specify whether a judgment is to be given the effect it would have in the state that issued it, the effect it would have in the state recognizing it, or the effect specified by some other federal rule. Congress selected the first of these approaches in 1790, and it has been on the books ever since. See Act, ch. 11, 1 Stat. 122 (1790) (codified at 28 U.S.C.A. § 1738 (1994); Brilmayer, supra note 72, at 298-307.
121. U.S. Const. art. I, § 8, cl. 18 empowers Congress to "make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers."
122. Senate Hearing, supra note 49, at 58 (letter of Michael W. McConnell to Orrin G. Hatch (July 10, 1996)) [hereinafter McConnell letter].
123. Id. at 57.
124. Id. For a distinct analysis to the same effect, see Wardle Statement, supra note 47, at 36-37.
125. An especially clear example may be found in the Twentieth Amendment: The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. U.S. Const. amend. XX, § 2. This provision supersedes a similar proviso in U.S. Const. art. I, § 4.
126. U.S. Const. art. III, § 2.
127. See generally Richard H. Fallon et al., Hart & Wechsler's The Federal Courts and the Federal System 348-87 (4th ed. 1996). "Doubts about the constitutionality of jurisdictional limitations partially account for Congress's failure to adopt such statutes."
128. Erwin Chemerinsky, Constitutional Law: Principles and Policies 140 (1997).
129. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1365 (1953).
130. In a few cases, Congress has created statutory exceptions to full faith and credit, but these involved judgments that Congress had the power to declare void for all purposes, not just for full faith and credit. In Kalb v. Feuerstein, 308 U.S. 433 (1940), for example, Congress was held to have set forth in the Frazier-Lemke Act that a judgment contrary to its provisions, entered in state court, would be void. This Act was adopted during the Depression to deprive state courts of the power to take away the farms of individuals who defaulted on their mortgages. Because Congress has plenary authority over bankruptcies, see U.S. Const. art. I, § 8, cl. 4, and provided in the Act that the filing of a petition in federal court would automatically stay any pending state proceedings, any further state proceedings were void. Similarly, in United States v. U.S. Fidelity and Guar. Co., 309 U.S. 506 (1940), the Court held that the sovereign immunity of Indian nations could only be waived by Congress, and that otherwise judgments violating that sovereign immunity were void. Taken together, these decisions indicate that where Congress has plenary authority to divest state courts of jurisdiction over an issue, Congress may also provide that no faith and credit need be given to judgments issued in excess of those courts' allowable jurisdiction. These cases do not, however, support a general right of Congress to repeal full faith and credit for judgments issued by state courts within their proper jurisdiction:
131. The Court has often stated that this power exists, though it has rarely been exercised. See Matsushita Elec. Indus. Co. v. Epstein, 116 S. Ct. 873, 881 (1996) (citing cases). One such exception is the historic rule that res judicata does not bar habeas corpus. See Charles Alan Wright, Law of Federal Courts 356-59 (5th ed. 1994). "The Full Faith and Credit Clause is of course not binding on federal courts . . . ." Univ. of Tennessee v. Elliott, 478 U.S. 788, 799 (1986).
132. See Riley v. New York Trust Co., 315 U.S. 343, 348-49 (1942): This clause of the Constitution brings to our Union a useful means for ending litigation. Matters once decided between adverse parties in any state or territory are at rest. Were it not for this full faith and credit provision, so far as the Constitution controls the matter, adversaries could wage again their legal battles whenever they met in other jurisdictions. Each state could control its own courts but itself could not project the effect of its decisions beyond its own boundaries. That clause compels that controversies be stilled so that where a state court has jurisdiction of the parties and subject matter, its judgment controls in other states to the same extent as it does in the state where rendered. This is true even though the cause of action merged in the judgment could not have been enforced in the state wherein the enforcement of the judgment is sought. By the constitutional provision for full faith and credit, the local doctrines of res judicata, speaking generally, become a part of national jurisprudence, and therefore federal questions cognizable here. (footnote and citations omitted).
133. See Weintraub, supra note 11, at 550; Robert H. Jackson, Full Faith and Credit: The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1, 34 (1945); Laycock, supra note 78, passim.
134. In another context, McConnell himself has emphasized the importance of avoiding incentives for forum-shopping and noted that such strategic activity by litigants impairs states' legitimate efforts to govern themselves. Michael W. McConnell, A Choice-of-Law Approach to Products-Liability Reform, in New Directions in Liability Law 90, 90-91 (Walter Olson ed., 1988). (Thanks to Doug Laycock for pointing out the relevance of this article.) That Congressional action under the Effects Clause permits a uniform result across states is necessary but not sufficient for its constitutionality. A federal choice-of-law statute providing that Hawaii law always applies whenever a litigant claims it does would eliminate incentives for forum-shopping, but it would still invade states' sphere of legitimate authority.
135. Senate Hearing, supra note 49, at 46 (statement of Cass R. Sunstein) [hereinafter Sunstein Statement].
136. Hart, supra note 106, at 1365.
137. This selectivity may also produce difficulties, which I shall not pursue here, arising from the requirement that Congress exercise its effects power by "General Laws."
138. 17 U.S. 316 (1819).
139. Philip Bobbitt, Constitutional Fate: Theory of the Constitution 79 (1982).
140. For a similar reading of McCulloch, see Charles L. Black, Jr., Structure and Relationship in Constitutional Law 14-15 (1969).
141. The Court has repeatedly indicated that the federal government may not federalize such traditional areas of the common law as torts or contracts. Laurence H. Tribe, American Constitutional Law 380-81 (2d ed. 1988). Recently, the Court unanimously endorsed the proposition that family law could not be regulated by Congress. See United States v. Lopez, 514 U.S. 549, 564 (1995) (rejecting a broad reading of the federal commerce power because such a power would authorize Congress to regulate "family law (including marriage, divorce, and child custody)"); id. at 624 (Breyer, J., joined by Stevens, Souter, and Ginsburg, JJ., dissenting) (denying that a broad reading of the commerce power would imply that result).
142. Tribe Letter, supra note 95, at S5932.
143. Id.
144. For similar arguments against a sweeping interpretation of the effects power, see Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965, 1999-2007 (1997); Ruskay-Kidd, supra note 25, at 1449-65.
145. Some writers have recently debated the import of the history of the effects provision during the drafting of the Constitution, see Daniel A. Crane, The Original Understanding of the "Effects Clause" of Article IV, Section 1 and Implications for the Defense of Marriage Act, 6 Geo. Mason L. Rev. 307, 319-24 (1998) (arguing for a broad reading of the effects power);
146. Julie L.B. Johnson, Comment, The Meaning of "General Laws": The Extent of Congress's Power Under the Full Faith and Credit Clause and the Constitutionality of the Defense of Marriage Act, 145 U. Pa. L. Rev. 1611, 1617-18 (1997) (arguing that the same sources support a narrow reading of the effects power), but as Professor Kramer has observed, this history is legally irrelevant. The ratifiers of the Constitution - the only people with the authority to make it into binding law - had no idea what went on in the Philadelphia Convention and could not reasonably be said to have ratified a legislative history of which they were unaware.
147. See Kramer, supra, at 2003 n.136; Larry Kramer, Fidelity to History - And Through It, 65 Fordham L. Rev. 1627, 1642-44 (1997).
148. The House Judiciary Committee report included a section on Romer, but it was primarily devoted to denouncing the opinion rather than extracting a principle from it and showing that principle's inapplicability to DOMA. See House Report, supra note 46, at 30-32.
149. Romer v. Evans, 116 S. Ct. 1620, 1628 (1996).
150. Senate Hearing, supra note 49, at 2 (statement of Senator Orrin Hatch, Chairman, Comm. on the Judiciary).
151. Romer, 116 S. Ct. at 1628.
152. See Koppelman, Same-Sex Marriage, supra note 59, at 13. For example, the Southern states, which regarded interracial marriages with fear and loathing, nonetheless invariably recognized such marriages when the couple was not domiciled in the forum state and sometimes did so even when the couple was so domiciled. See Whittington v. McCaskill, 61 So. 236 (Fla. 1913); Minor v. Young, 89 So. 757 (La. 1920); Caballero v. Executor, 24 La. Ann. 573 (1872); Miller v. Lucks, 36 So. 2d 140 (Miss. 1948); State v. Ross, 76 N.C. 242 (1877); Scott v. Epperson, 141 Okla. 41 (Okla. 1930). Professor Sunstein testified: I have not been able to find any other national legislation saying that states are permitted not to recognize a marriage or similar arrangement as determined by the states at hand. Indeed, it appears that [DOMA] is the first time in the nation's history that Congress has expressly said that a state is permitted not to recognize a judgment of another state. Like the Colorado amendment at issue in Romer, [DOMA] is an oddity in our constitutional tradition. Sunstein Statement, supra note 111, at 47. Similarly Professor Larry Kramer observes: "Congress was content to let the states slug it out on issues like slavery, miscegenation, divorce, and abortion - but this, it seems, goes too far." Kramer, supra note 119, at 2001.
153. Romer v. Evans, 116 S. Ct. 1620, 1629 (1996).
154. Id.
155. Id. at 1627. An alternative reading of Romer that would avoid these constitutional objections to DOMA is offered by Akhil Amar, who argues that Amendment 2 should be understood as a sort of bill of attainder against a class of persons, defined by status and not by conduct. The "analytic lynchpin" of Romer, Amar argues, is Justice Kennedy's claim that Amendment 2 burdens a "targeted class" and "imposes a special disability upon [homosexuals] alone." Akhil Amar, Attainder and Amendment 2: Romer's Rightness, 95 Mich. L. Rev. 203, 225 (1996) (quoting Romer, 116 S. Ct. at 1626-27). All laws classify, of course, but Amendment 2 is peculiar because it is based on a trait, sexual orientation, rather than conduct. "[M]ere orientation cannot be criminalized or used by law, to disenfranchise or degrade," id. at 228, but this is what Amendment 2 did. If this account of Romer is accepted, it is easy to see how DOMA could be distinguished from Amendment 2. DOMA, one could argue, is not a "status-based enactment." Romer, 116 S. Ct. at 1629. It does not single out a "named group." Id. at 1627. As its principal scholarly defender argued, "DOMA does not discriminate on the basis of any 'orientation' but it is conduct (marriage) and action (actual same-sex relationships) that are the permissible basis for distinguishing heterosexual marriage from same-sex unions." Wardle Statement, supra note 47, at 40. The problem with Amar's explanation of Romer is that it mistakes a step in Kennedy's argument for its conclusion. If it were unconstitutional to single out a named class for disadvantage, then, as Justice Scalia pointed out, it would also be impermissible to enact a "state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen." Romer, 116 S. Ct. at 1631 (Scalia, J., dissenting). Amar responds that such a law would not target anyone in particular; it "could apply to many persons in the future, if their relatives happen to win future office." Amar, supra, at 233. But it is equally true that, at the time that such a law is enacted, some people will be immediately affected, and everyone is likely to know who at least some of them are. Even if the legislative history makes it plain that the statute was enacted solely in response to one city's too-cozy dealings with the mayor's brother, the law is valid because its purpose is legitimate. Amar's account of Romer focuses on the fact that Amendment 2 names a disfavored class, but this naming mattered to the Court only because of what it revealed about the State's purpose. See generally Koppelman, supra note 40. The broad disability imposed on a targeted group raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional concept of "equal protection of the laws" means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). Romer, 116 S. Ct. at 1628. Moreno did not involve the naming of a class defined by status. It invalidated a 1971 amendment to the Food Stamp Act that excluded from participation in the food stamp program any member of a household whose members are not all related to each other. (Congress evidently was attempting to prevent "hippie communes" from receiving any stamps.) Moreno and DOMA both involved congressional targeting of households of which it disapproved. Membership in a certain kind of household is not a trait or an orientation, and neither DOMA nor the food stamp amendment is purely a "status-based enactment."
156. On the usefulness of declaratory law that does not change underlying legal reality, see Sanford Levinson, How Many Times Has the Constitution Been Amended? (A) <26; (B) 26; (C) 27; (D) >27: Accounting For Constitutional Change, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 13 (Sanford Levinson ed., 1995).
157. Some evidence in the legislative history supports this interpretation. After struggling in vain to compile evidence of any real danger that full faith and credit might obligate the entire country to recognize same-sex marriage for all purposes, the House Judiciary Committee report on the bill concludes with the argument that the "[m]ost important" reason for legislative action is "the evident disquiet in the various States created by the Hawaii situation." Noting that many states had recently passed statutes declaring that they would not recognize same-sex marriages valid in other states, the report concludes: The fact that these States are sufficiently concerned about their ability to defend their marriage laws against the threat posed by the Hawaii situation is enough to persuade the Committee that federal legislation is warranted. The States, after all, are best-positioned to assess the legal situation within their own State; that so many of them are not content to rely on the amorphous "public policy" exception reveals that congressional clarification and assistance is both necessary and appropriate. House Report, supra note 46, at 10. A more carefully drafted statute might have provided the intended clarification. If it is thus understood, DOMA should have no effect whatsoever on state courts' deliberations about same-sex marriage recognition in
158. See, e.g., Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965).
159. For the legislative history concerning full faith and credit to judgments, see supra text accompanying notes 88-89.
160. 481 U.S. 739 (1987).
161. Romer v. Evans, 116 S. Ct. 1620, 1632 (1996) (Scalia, J., dissenting).
162. 481 U.S. at 745.
163. Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 239 (1994).
164. Richard F. Duncan, Wigstock and the Kulturkampf: Supreme Court Storytelling, the Culture War, and Romer v. Evans, 72 Notre Dame L. Rev. 345, 353 (1997) (quoting Dorf, supra note 135, at 279). Dorf cites Edwards v. Aguillard, 482 U.S. 578 (1987), as evidence that the Salerno rule "does not apply to facial challenges to statutes with an unconstitutional purpose." Dorf, supra note 135, at 280.
165. Louis M. Seidman offers a similar explanation for the failure of the Salerno argument in Romer's Radicalism: The Unexpected Revival of Warren Court Activism, 1996 Sup. Ct. Rev. 67, 78, 85.
166. See generally United States Supreme Court Official Reporter Transcript, Romer v. Evans, 116 S. Ct. (1996) (No. 94-1039).
167. Duncan, supra note 136, at 354 (quoting Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990)).
168. See Koppelman, supra note 40 (defending at greater length the interpretation of Romer offered here). But see Richard Duncan, The Narrow and Shallow Bite of Romer and the Eminent Rationality of Dual-Gender Marriage: A (Partial) Response to Professor Koppelman, 6 Wm. & Mary Bill of Rts. J. 147 (1997) (arguing that the Court struck down Amendment 2 due to its sheer overbreadth, and not because the Court implicitly recognized that it was based upon animus towards gays).
169. See Richard F. Duncan and Gary L. Young, Homosexual Rights and Citizen Initiatives: Is Constitutionalism Unconstitutional?, 9 Notre Dame J.L. Ethics & Pub. Pol'y 93, 126-30 (1995).
170. Romer v. Evans, 116 S. Ct. 1620, 1627 (1996).
171. Id. at 1629. Some readers may wonder at this point how I reconcile my claim that DOMA will have nearly no effect on existing law with my claim that its effects are broad and undifferentiated. The two claims fit together in the following way. Although DOMA's actual effects on the law are limited, since the problem DOMA purports to solve does not exist, those effects would be pretty severe for anyone unfortunate enough to be a member of the narrow class of persons affected-for example, someone who wants to enforce a money judgment awarded after litigation in which the existence of a same-sex marriage was alleged in the complaint. If one examines that narrow class, it is hard to come up with a case where DOMA changes existing law in a defensible way. DOMA's effects are broad and undifferentiated in that it inflicts unjustifiable harm in any of the narrow range of cases that it affects. The statute's effect is like that of firing a blunderbuss into a small but inhabited room. The effects will be narrowly confined, but they will be broad and undifferentiated with respect to the people in the room.
172. Romer, 116 S. Ct. at 1629. The conclusion that DOMA may be unconstitutional under the rule of Ramer, Sunstein notes, does not mean that same-sex marriages must be recognized (just as Romer does not mean that a state must forbid discrimination against homosexuals). It means that a "unique disability" imposed on homosexuals raises serious questions, and [DOMA] is a unique disability insofar as Congress has enacted no similar measure about any other kind of socially disapproved "marriage." Sunstein Statement, supra note 111, at 48.
173. Dorf, supra note 135, at 279 n.192.
174. "In determining whether the invalid portion of a statute may be severed from the valid portion, the question is whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part excised or rejected altogether." Norman J. Singer, Sutherland's Statutory Construction 501 (5th ed. 1993). For DOMA, the answer is clear. DOMA would not present a case in which, "by sustaining only a part of the statute, the purpose of the act is changed or altered." Id. at 518. The definitional section is "independent of the invalid portion and . . . form[s] a complete act within itself." Id. at 501. Severing it would hardly "defeat the intent of the legislature." Id. at 522. "There is . . . a presumption that a legislative body generally intends its enactments to be severable, especially in the case where it will preserve the constitutionality of the enactment." Id. at 495.
175. See supra notes 14-55 and accompanying text.
176. 508 U.S. 520 (1993).
177. Id. at 528 (quoting Hialeah Ordinance 87-72). The full text of the ordinance is provided at 555-57.
178. Id. at 545.
179. See, e.g., New Orleans v. Dukes, 427 U.S. 297 (1976) (upholding exemption from pushcart ban for vendors of a certain longevity); Railway Express Agency v. New York, 336 U.S. 106 (1949) (upholding exemption from ban on advertising on vehicles for vehicles advertising the owner's products).
180. But cf. Petitioner's Brief at 27, Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993) (No. 91-948) ("If this Court permits even [the limited protection for free exercise that it now provides] to be evaded by clever drafting and a mere pretense of neutrality, then it has indeed repealed the Free Exercise Clause.").
181. Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 539-10 (1993).
182. Id. at 540; cf. id. at 557 (Scalia, J., concurring in part and concurring in the judgment) (arguing that the Court should invalidate "those laws which, though neutral on their terms, through their design, construction, or enforcement target the practices of a particular religion for discriminatory treatment").
183. I am grateful to Doug Laycock, who argued and won the Lukumi case, for pointing out its relevance here.
184. 508 U.S. at 541-42.
185. Id. at 534.
186. Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting). These limitations have long been emphasized by Justice Scalia, who thinks that it is almost never appropriate for courts to rely on extrinsic evidence of legislators' meaning. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 650-56 (1990). Justice Frankfurter once took a similar line: You may have observed that I have not yet used the word "intention." All these years I have avoided speaking of the "legislative intent." . . . Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose. That is what the judge must seek and effectuate, and he ought not to be led off the trail by tests that have overtones of subjective design. We are not concerned with anything subjective. We do not delve into the minds of legislators or their draftsmen, or committee members.
187. Felix Frankfurter, Some Reflections on the Reading of Statutes, 1947 Colum. L. Rev. 527, 538-39.
188. As Dorf observes, supra note 135, at 252 n.61, the Court has tended to remedy underinclusive federal benefit statutes by expanding the class of beneficiaries (citing Califano v. Westcott, 443 U.S. 76, 89-91 (1979) (gender discrimination in welfare benefits); Jimenez v. Weinberger, 417 U.S. 628, 637-38 (1974) (granting disability benefits to illegitimate children of disabled parents); Frontiero v. Richardson, 411 U.S. 677, 691 & n.25 (1973) (plurality opinion) (allowing dependency allowance for husbands of armed forces members)).
189. 339 U.S. 629, 634-35 (1950) (finding that a newly formed law school for black students was not sufficiently equal in reputation and faculty to its exclusively white counterpart and, therefore, violated equal protection).
190. Two writers have already noted Romer's resemblance to Reed v. Reed, 404 U.S. 71 (1971), in which the Court invalidated a sex discriminatory statute on rational basis grounds: "Reed is now recognized as the case that ushered in the era of heightened scrutiny for gender discrimination." Tobias B. Wolff, Case Note, Principled Silence, 106 Yale L.J. 247, 250 (1996). See also Ruskay-Kidd, supra note 25, at 1444.
191. Democracy and Distrust 243 n. 11 (1980).
192. Id. at 250 n.64.