Jason Mazzone has an excellent post analyzing the risk of “liberals making federalism arguments” in the DOMA cases. I like the reason Jason offers: “There is, of course, an additional objection to liberals invoking federalism and state sovereignty as a reason to invalidate section 3: they don’t really mean it.”

I wondered (facetiously) whether any of the Justices would bite on a federalism argument against DOMA, while rejecting an individual rights view.

But, I wonder if the federalism issues are even live.

The question presented was limited to “Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State” (in addition to questions about standing, and whether the appeal was proper because the SG agreed with the judgment below).

The Second Circuit’s opinion in Windsor only made fleeting references to Federalism, though the opinion does have a section on forcing states to accept a “uniform definition of marriage.”

Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.

…

Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.

This is a lukewarm federalism analysis.

Update: Andy Koppelman has a critical response to Mazzone’s post.

My Balkinization colleague Jason Mazzone’s timely piece on DOMA and federalism castigates unnamed “liberals” for making federalism-based arguments against the statute.  It’s hard to tell who he has in mind, since he doesn’t say, but his piece can leave the misleading impression that he is describing the central claims of the challenge against DOMA.

He is partly right.  The federalism argument doesn’t make much sense in this context.  But it is not the strongest argument against DOMA.

Of course, the Justices can address any issues they want, and I’m sure Paul Clement will find a way to brief this issue.