Sunday, October 24, 2010

Justice Stephen Breyer and the "Recognition of Same-Sex Marriage Act" Hypothetical

Supreme Court Associate Justice Stephen G. Breyer

In the event of an appeal to the Supreme Court disputing an Appellate Court decision rejecting the legality of an act of Congress which would reverse an overturned Defense of Marriage Act of 1996, a hypothetical “Recognition of Same Sex Marriage Act” (R.O.S.S.M.A), Supreme Court Justice Stephen Breyer would author or concur with the author of an opinion which would affirm the power of Congress and support R.O.S.S.M.A.’s constitutionality.

In the decision of this case, in an opinion authored by Breyer or by one of his concurring colleagues, the Commerce Clause and the Necessary and Proper Clause would be cited as the constitutional bases for the opinion. Numerous Supreme Court cases could be cited as legal precedent for such an opinion, such as U.S. v. Lopez, Printz v. U.S., or any of the other major cases in which Breyer has been on the winning side, but also and especially the pre-WWII cases National Labor Relations Board v. Jones & Laughlin Steel Corporation and Wickard v. Filburn, as well as the 1985 case Garcia v. San Antonio Metro Transit Authority. Garcia was the most recent example of a high-profile defeat of dual federalism by cooperative federalism. It was decided before Breyer’s confirmation as a Supreme Court Justice.

Congress has power to “regulate commerce… among the several states” under the Commerce Clause (Article I, Section 8, clause 3). This [is commonly interpreted to mean] that any and all commercial activities taking place in more than one state, as well as commerce with foreign nations and Native American tribes, are subject to regulation by the United States Congress. In the 1942 Supreme Court case Wickard v. Filburn, appellee and farmer Roscoe Filburn argued that his having harvested an excessive amount of wheat, which was intended for consumption on his own property, was primarily local in nature, and thus had only “indirect” effects upon interstate commerce. Therefore, in the opinion of Filburn and his attorneys, Filburn’s excessive harvest – which had been deemed to be in violation of the 1938 Agricultural Adjustment Act – was legal, did not constitute sufficient grounds for regulation by Congress, and thus the fine imposed on Filburn was without basis.

Justice Robert Jackson, reversing the decision of the appellate court, wrote in a unanimous opinion that “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this is irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect’”.

Whether activities directly or indirectly affected interstate commerce had been significant in the decisions of U.S. v. E.C. Knight & Co., Schechter Poultry v. U.S., and Carter v. Carter Coal Co., all of which preceded the Wickard and N.L.R.B. decisions. Activities such as manufacturing, processing, and mining were held to be local in nature, and thus impertinent to and only indirectly relating to interstate commerce.

The 1937 decision of National Labor Relations Board v. Jones & Laughlin Steel Corporation provided a more explicit definition of what constituted interstate commerce. In a split decision, Chief Justice Charles Evans Hughes wrote that if local and intrastate activities have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress may exercise control.

The requirement that commercial regulation by Congress be essential and appropriate falls in line with the Necessary and Proper Clause – Article I, Section 8, clause 18 – which gives Congress the power to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government and its departments and officers.

According to the decisions of N.L.R.B. and Wickard, that local economic activity was indirect made little difference to whether regulation by Congress should have standing. In these cases, the Supreme Court gave more weight to whether activity had substantial relation to and substantial economic effect upon interstate commerce, thereby broadening the definition of what constitutes interstate commerce, and narrowing the definition of what may be construed as purely intrastate commerce.

This doctrine of cooperative federalism stood until the 1976 case National League of Cities v. Usery, but regained standing upon the decision of Garcia v. San Antonio Metro Transit Authority in 1985.

Justice Stephen Breyer joined in the dissenting opinion of the 1997 case Printz v. U.S. – written by Justice John Paul Stevens  – arguing against Justice Antonin Scalia’s majority opinion which rejected the constitutionality of the 1993 Brady Handgun Violence Prevention Act, which required the attorney general to establish a national database allowing for instant background checks of those attempting to buy handguns. In the Printz decision, Scalia cited as precedent the 1992 case New York v. U.S., which declared that the federal government does not have the power to command the states to pass legislation to implement federal policy, but rather that it only has the power to provide incentives for the states to act.

Since his confirmation by the Senate in 1994, Justice Breyer supported cooperative federalism and upheld congressional power under the Commerce Clause in cases such as U.S. v. Lopez in 1995, Printz v. U.S. in 1997, U.S. v. Morrison in 2000, and Gonzalez v. Raich and Granholm v. Heald in 2005. In those five cases, he always sided with Justices Ginsburg and Souter, almost always concurred with Justice Stevens, agreed with Justices Kennedy and Scalia twice each, and found himself in consistent dissent with Chief Justice Rehnquist and Justices O’Connor and Thomas.

Justice Breyer would find the Recognition of Same Sex Marriage Act constitutional because he would consider interstate commerce both substantially related and substantially economically affected by the Defense of Marriage Act in such a way that necessitates and makes appropriate the protection of commerce from such burden and obstruction, in keeping with the cooperative federalist language of N.L.R.B. and Wickard. Breyer would also cite the decision of Garcia v. San Antonio Metro Transit Authority, which held that only core government functions that preserve the independence of states may be exempted from federal commercial power legislation, same sex marriage in no way suppressing the ability of states to function independently of one another.

Written in December 2009 for a college course
Originally Published on October 24th, 2010

For more entries on gender, sexuality, and L.G.B.T.Q. issues, please visit:

1 comment:

  1. Thanks admin
    you have good post and nice blog
    and i want to visit and subscribe to my blog Articles2Day.Org and Internal Sales Staff
    thanks a gain admin ,,,