A common argument for the constitutionality of Obamacare under the Commerce Clause was that because, virtually everybody was going to require medical care at some point Congress wasn’t forcing people to enter the healthcare market (and its derivative health insurance market). Instead, Congress was merely regulating the timing and manner of their payments for healthcare of which they would eventually partake. Sure, some people — hermits, those who die suddenly, medical skeptics — would never enter the healthcare market, but the essence of a national legislature is that it has the power to solve national problems even when those problems don’t affect a few outliers. (The hook on which this idea about the essence of national legislative power was hung is the line in Wickard v. Filburn about how Congress can reach activity that in aggregate substantially affects interstate commerce, but that hook should not be confused with the idea itself, which is an overwhelmingly plausible claim about national legislative power generally.) Moreover, courts should defer to Congress because it is the branch with the democratic legitimacy and institutional competency to identify and develop solutions to national problems.
Now consider § 3 of DOMA, defining marriage as a union of one man and one woman. Proponents say that this is a rational decision by Congress to incentivize stable procreative unions and thereby ensure that the population continues to grow and children continue to be raised by their parents. Opponents argue that DOMA must be motivated by animus as opposed to an interest in incentivizing procreative unions in large part because DOMA’s definition of marriage covers non-procreative couples (those who are sterile, those who don’t’ want to have children, etc.). Thus, DOMA plainly cannot be about incentivizing procreation and the raising of children by their parents — protecting heterosexual marriage is simply inapposite to that goal.
Doesn’t this argument against the constitutionality of DOMA run directly contrary to the principles underlying the argument in favor of the constitutionality of Obamacare with which this post began? If Congress has the power to define and solve national problems without regard to whether there are outliers who won’t benefit from those solutions, then shouldn’t its definition of the problem of incentivizing procreation and its traditional marriage solution stand? At the very least it should survive rational basis scrutiny, which is still the law under Lawrence v. Texas.
There is obviously one principled way out here — reject our ideology of liberal democratic proceduralism and form your own independent substantive judgment (the bleeding obvious) that the goods flowing from requiring the recognition of same sex marriage outweigh the (paranoiac’s) “risks” it poses, just like the goods flowing from requiring universal health insurance coverage outweigh the costs to liberty imposed by the individual mandate. But I don’t see a way out from within the liberal democratic proceduralism that most proponents of Obamacare and opponents of DOMA purport to embrace.
Related see here. I particularly recommend Eastman’s essay detailing the procedural abuses and doctrinal sleights of hand committed by proponents of same sex marriage. I say hear, hear to them, but one can see how somebody who values unthinking adherence to the letter of the law in all circumstances would be distressed.