Why the Defense of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors That Determine What the Constitution Requires

This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional - at least not yet. DOMA provides that States need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister States. The Article first shows that the Supreme Court\u27s recent opinion in Lawrence v. Texas, which struck down as unconstitutional state laws that criminalized sodomy, has not invalidated the DOMA. Lawrence is best understood as having left undecided the constitutional status of same-sex marriage, and the Article explains the benefits of the Court\u27s having held back its constitutional judgment on this subject at this time. The Article then debunks the many arguments that numerous scholars proffered before Lawrence that DOMA exceeded Congress\u27 authority. Claims that the DOMA violates state sovereignty by interfering with a family law subject that appropriately falls to the domain of the States are premised on a mischaracterization of the DOMA: the statute does not regulate family law as such, but serves the quintessentially federal function of determining the extraterritorial effect of State law. Arguments that the DOMA undermines Full Faith and Credit\u27s fundamental principle of unifying the country overlook a second animating principle behind Full Faith and Credit with which the DOMA is fully consistent - the preservation of meaningfully empowered States. Furthermore, while virtually all scholarly critiques have assumed that the DOMA authorizes States to deviate from Supreme Court precedent regarding the enforcement of judgments, the Article shows that DOMA actually fills a gap in the Court\u27s jurisprudence in a manner that is consistent with precedent. Even were this not so, DOMA would not be unconstitutional, the Article argues, because Congress has authority to legislate full faith and credit rules that vary from those identified in Supreme Court opinions. In the end, the Article\u27s analysis suggests that if and when the Court strikes down the DOMA, its unconstitutionality is appropriately grounded in Lawrence-type liberty grounds rather than on the basis of the Full Faith and Credit Clause; the Full Faith and Credit Clause should not be used to thwart differences across states in respect of substantive policies that themselves are not unconstitutional. In the interim, DOMA is best understood as an instance of congressional participation in the process of defining our country\u27s constitutional culture; the Court has not yet decided the constitutionality of same-sex marriage, and the DOMA reflects the political branches\u27 contribution, by means of the institutional tools at their disposal, to the process of deciding how American political culture should deal with the incidents of gay life. DOMA\u27s actual effects on constitutional culture remain to be seen: will it shape societal views, prompt angry opposition, or something else? Certainly until the Supreme Court takes a definitive position, and perhaps even after, other societal actors (including States and citizens themselves) are entitled to react to Congress\u27 currently reflected views on same-sex marriage and thereby participate in the ongoing development of American constitutional culture

Our Nonuniform Constitution: Geographical Variations of Constitutional Requirements in the Aid of Community

This Article highlights an overlooked but integral aspect of American constitutional law: that some activities believed to be flatly unconstitutional are permissible in select locations. Contrary to what the Constitution has been construed to proscribe in most jurisdictions, for example, governments in some places in our country can ban political speeches by citizens, impose prior restraints with regard to petitions to government officials, and disallow defendants at risk of incarceration from having counsel. The Article brings together the case law that creates nonuniformity across geographical locations. It first explains the mechanics by which this geographical constitutional nonuniformity is generated and establishes that such nonuniformity sometimes is used to enable idiosyncratic but valuable communities to endure. Nonetheless courts often overlook the availability of geographical constitutional nonuniformity and unquestioningly conclude that the Constitution forecloses any and all communities from governing themselves in unconventional ways. The Article shows how geographical constitutional nonuniformity can be utilized to extend the powers of self-governance to various communities not currently the beneficiaries of constitutional nonuniformity and identifies the factors that determine when resort to nonuniformity is constitutionally appropriate

The Surprisingly Strong Case for Tailoring Constitutional Principles

Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article\u27s thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an alternative approach to One-Size-Fits-All that it dubs Tailoring. Tailoring refers to the possibility, though not the requirement, that a constitutional provision may apply differently to different levels of government. Tailoring thus would permit a situation where the federal government could regulate in ways unavailable to the sub-federal polities as a matter of constitutional law. Conversely, states or localities other times might be permitted to regulate in ways that the federal government could not. Though Tailoring might sound completely outlandish, the Article shows that more than a dozen Justices over the past century (including four who currently sit on the Court) have advocated that particular constitutional principle be tailored and that several discrete areas of contemporary constitutional law are best understood as examples of Tailoring. In the end, the Article concludes that the One-Size-Fits-All approach that is reflected in contemporary doctrine should be softened from a categorical requirement to a rebuttable presumption. Sensitivity to what level of government is acting - the conceptual core of Tailoring - is critical because the different levels of government are sufficiently dissimilar that a particular limitation as applied to one may have very different repercussions when applied to another. The Article identifies five respects in which the different levels of government systematically differ. Whether any or all of the differences justifies Tailoring a given constitutional principle ultimately turns on what is best characterized as pre-constitutional, political commitments. Interestingly, however, a broad array of competing approaches to ordering social life that often generates conflicting policy prescriptions - including public choice theory, law and economics, Robert Nozick\u27s political philosophy, John Hart Ely\u27s process theory, multi-culturalist theorists Will Kymlicka and Charles Taylor, and Rawlsian political thought - finds one or more of these distinctions sufficient to support Tailoring. The fact that many competing methodologies converge on the conclusion that Tailoring sometimes might be desirable counsels that constitutional doctrine should be responsive to potential differences among the various levels of government

Exporting the Constitution

If a foreign government enacts a law that would be unconstitutional if passed in the United States, can a foreign judgment based on that law be enforced in an American court? For example, can an American court enforce an English judgment based on English defamation law, which is more pro-plaintiff than the First Amendment permits American law to be? The same issue was presented by recent litigation involving Yahoo!, where a federal district court considered whether it could enforce a French judgment based on a French law that regulated hate speech more broadly than the First American allows American polities to regulate. American courts to date uniformly have concluded that enforcing such foreign judgments would be unconstitutional. This Article argues that these courts\u27 analysis is mistaken: While such a foreign judgment may well be un-American insofar as it comes from a non-American polity and reflects political values that diverge from American constitutional law, neither the foreign judgment itself, nor its enforcement by an American court, is unconstitutional. The Article shows that the American courts\u27 analyses are based on a misunderstanding of post-Shelley v. Kraemer jurisprudence. The Article also explains why a legal requirement that foreign judgments be enforced does not qualify as a generally applicable legal rule that would trigger constitutional scrutiny. The American courts\u27 mistaken constitutional analysis has begotten pernicious consequences. The illusion of unconstitutionality has obscured the fact that whether un-American judgments are to be enforced must be decided on the basis of policy. The courts\u27 constitutional confusion also has hidden the fact that the more political branches of government are best institutionally suited on purely functional grounds to making such value-laden judgments. As a doctrinal matter, the courts\u27 erroneous analysis threatens to wrongly narrow the scope of the President\u27s power to pursue an executive agreement or to negotiate an enforcement treaty with other countries, thereby depriving the President and Congress of powers in respect of foreign affairs that are constitutionally theirs to exercise. Finally, the courts\u27 faulty constitutional conclusion has led to a wholly American-centered analysis that categorically disregards a range of considerations that, on virtually any normative theory, are relevant to deciding whether un-American judgments should be enforced. (A companion piece explores in detail the policy considerations that appropriately determine whether un-American judgments should be enforced, see Should Un-American Foreign Judgments be Enforced?, 88 Minnesota Law Review 783 (2004)). This is a particularly opportune time to correct the constitutional misperceptions concerning un-American judgments because the United States is in the process of negotiating an international treaty dealing with the enforcement of foreign judgments. It is important that American negotiators not be constrained by illusions of constitutional limitations when they attend to their task of forging a multilateral treaty