Ed Whelan


Edward Whelan is the President of the Ethics and Public Policy Center. He directs EPPC's program on The Constitution, the Courts, and the Culture. His areas of expertise include constitutional law and the judicial confirmation process. As a contributor to National Review Online's Bench Memos blog, he has been a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law. He has written essays and op-eds for leading newspapers (including the Wall Street Journal, the New York Times, and the Washington Post), opinion journals, and academic symposia and law reviews. In 2011, the National Law Journal named Mr. Whelan among its "Champions and Visionaries" in the practice of law in D.C. The National Law Journal praised Mr. Whelan for "pioneer[ing] the field of legal blogging" and for offering "commentary [that] infuses national debates over judicial nominees, Supreme Court ethics and appellate court decisions—so much so that, when a Senate Republican cites outside research into the record of an Obama nominee, it's more likely than not that the handiwork is Whelan's." Mr. Whelan, a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia, has served in positions of responsibility in all three branches of the federal government. From just before the terrorist attacks of September 11, 2001, until joining EPPC in 2004, Mr. Whelan was the Principal Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. In that capacity, he advised the White House Counsel's Office, the Attorney General and other senior DOJ officials, and Departments and agencies throughout the executive branch on difficult and sensitive legal questions. Mr. Whelan previously served on Capitol Hill as General Counsel to the U.S. Senate Committee on the Judiciary. In addition to clerking for Justice Scalia, he was a law clerk to Judge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit. Mr. Whelan also previously worked as Senior Vice President and Counselor to the General Counsel for Verizon Corp. and as a lawyer in private practice. In 1981 Mr. Whelan graduated with honors from Harvard College and was inducted into Phi Beta Kappa. He received his J.D. magna cum laude in 1985 from Harvard Law School, where he was a member of the Board of Editors of the Harvard Law Review.

A Response to Dale Carpenter on the Second Circuit and Same-Sex Marriage

October 23, 2012

I disagree with Dale Carpenter’s claim that the First Circuit’s ruling invalidating the Defense of Marriage Act is in any significant way “more limited and incremental” than the Second Circuit’s ruling. I have critiqued both rulings at length on National Review Online’s Bench Memos (First Circuit here and here, Second Circuit here) and will limit myself here to these observations:

1. Carpenter asserts that under the First Circuit’s ruling “a state definition of marriage excluding gay couples would withstand ordinary rational-basis review.” Well, yes and no. Yes, only in the very limited sense that it’s equally true that under the First Circuit’s ruling the Defense of Marriage Act withstands ordinary rational-basis review. (See slip op. at 14 (“Under such a rational basis standard, the … plaintiffs cannot prevail”).)

What Carpenter’s phrasing obscures is his false premise that under the First Circuit’s ruling “ordinary rational-basis review” would even apply to “a state definition of marriage excluding gay couples.” As the First Circuit explains its heightened standard of “intensified” rational-basis scrutiny, “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications” (p. 15). In support of its standard, the court notes that the Supreme Court “has now several times struck down state or local enactments without invoking any suspect classification” (p. 16 (emphasis added)). So under the First Circuit’s ruling, a state definition of marriage would be subject to “intensified” scrutiny.

The (badly confused) “federalism concerns” that the First Circuit invokes operate merely as a sort of plus-factor in how intensified scrutiny applies: in the court’s own words, a “closer examination of the justifications … is uniquely reinforced by federalism concerns” (p. 23).

Note also that the First Circuit recognizes that the “burden” that DOMA imposes on same-sex couples is much less than that imposed by a state law that prevents same-sex marriage (p. 18). So that difference cuts heavily against a state law’s surviving “intensified” review.

In sum, under the First Circuit’s ruling, state definitions of marriage would be subjected to “intensified” rational-basis scrutiny. Under the court’s reasoning, there is no reason to believe that they would survive such review. So both the First Circuit ruling and the Second Circuit ruling strongly imply a federal constitutional right to same-sex marriage that would override state marriage laws.

2. Both the First Circuit and the Second Circuit purport to invoke interests of federalism, but both in fact trample federalism.

The Defense of Marriage Act’s definition of “marriage” does not implicate any genuine interests of federalism. On the contrary, the definition of marriage for purposes of provisions of federal law is inherently a federal matter. (The First Circuit acknowledges that DOMA does not violate the Tenth Amendment or the Spending Clause (p. 20), and the Second Circuit similarly recognizes (p. 41) that DOMA doesn’t affect each state’s ability to determine whether same-sex couples can marry under state law.)

Properly understood, federalism leaves state matters to the states and national matters to the national government. The only genuine interest of federalism at stake in these cases is the ability of Congress to determine what marriage is for purposes of provisions of federal law.

The fact that the federal government for a long period of time—after Congress acted to ban polygamy in the 19th century and before it encountered the same-sex marriage threat—often found it convenient and unobjectionable to incorporate state definitions of marriage into federal law can’t possibly mean that constitutional considerations of federalism render DOMA suspect. As I explain more fully here, even the opponents of DOMA implicitly recognize that it is entirely reasonable for the federal government to use its own uniform definition of the essential components of marriage as the basis for distributing federal marital benefits (while choosing to accept state variants on incidental features).

3. One minor point: Carpenter states: “Eight federal courts have recently ruled that [DOMA] is unconstitutional; none have upheld it.” If Carpenter intends the adverb “recently” to carry over to the second clause, then his statement is correct. But as the House of Representatives’ certiorari petition in the First Circuit case spells out (on pp. 9-10), in an earlier wave of litigation, five or so federal courts rejected the constitutional challenge to DOMA.