Deals

[Douglas Laycock]

Thinking out loud here, which is risky in such a public space. 

But it occurred to me that Boerne means that the gay rights movement may have nothing to offer in exchange for the repeal of DOMA.   The two sides cannot agree in a single bill to repeal DOMA and put a federal floor under religious liberty protections with respect to same-sex marriages.  So what deals might be possible? 

The repeal of DOMA could be tied to some other bill:  repeal of DOMA, or repeal of DOMA and enactment of ENDA, in the same package with WRFA.  (Defense of Marriage Act, Employoment Non-Discrimination Act, Workplace Religious Freedom Act).  Harder to do, because separate bills and not so directly related, but not impossible for that.  A bigger obstacle might be that ENDA and WRFA in the same bill is a much more obvious deal, both amending Title VII.  So the religious side may say it's being asked to throw in the repeal of DOMA for nothing.  Maybe that could be balanced out with amendments that strengthen WRFA, but this is not an easy deal. 

Or, you repeal DOMA and we promise to put religious liberty protections in same-sex marriage bills in state legislatures.   Impossible, because unenforceable.  Asks the other side to act like that poor crewman who turned over the captain before the pirates turned over the hostage. 

Or finally:  Congress could repeal DOMA conditional on a set of religious liberty protections.  The federal government will recognize, and will require states to recognize under the Full Faith and Credit Clause, same-sex marriages performed in states that codify the following guarantees of religious liberty for persons and institutions with conscientious objections to recognizing or assisting same-sex marriages:  List here.  

At least this could all be done in one bill on one subject.  It might invite constitutional challenge to the conditions, but if DOMA is constitutional (witholding recognition from all same-sex marriages), I don't see why repealing DOMA with conditions (witholidng recognition from some same-sex marriages) would not also be constitutional, at least as against federalism challenges.  With respect to state recognition, it would be based on the Enforcement Clause of the Full Faith and Credit Clause, and with respect to federal recognition, it would be based on the powers that underlie the statutes that create the need for the federal government to recognize marriages -- the tax power for joint returns, the spending power for social security, the bankruptcy power for  joint filing, and so on.   Same basis that DOMA has now. 

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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