Section 5 Modus Tollens and Same-Sex Marriage via Federal Legislation

Suppose we assume that Congress lacks the constitutional authority to require states to redefine marriage to include same-sex unions. From this assumption, it can be shown rather easily that the Supreme Court lacks the same authority, at least insofar as such authority depends on interpretation of Section 1 of the Fourteenth Amendment. We can call the way of showing this Section 5 modus tollens. The same-sex marriage version of it goes something like this:

(1) If Section 1 of the Fourteenth Amendment provides a constitutional right to marry a person of the same sex, then Congress has authority under Section 5 of the Fourteenth Amendment to require states to redefine marriage to include same-sex unions.

(2) Congress possesses no such authority.

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(3) Section 1 of the Fourteenth Amendment does not provide a constitutional right to marry a person of the same sex. 

This is a valid form of argument: (1) if P, then Q; (2) not Q; (3) therefore, not P. If the argument is unsound, it must be that one of the premises is wrong.

Perhaps one might question the connection between the existence of a Section 1 right and the existence of Section 5 enforcement authority. But premise (1) seems pretty solid. Even those Justices who insist on a pretty tight connection between Section 5 enforcement legislation and the existence of constitutional violations under Section 1 would recognize the validity of federal legislation that prohibits states from defining marriage in a way that causes widespread and recurring constitutional violations stemming from the regular denial of marriage to same-sex couples possessing a constitutional right to enter into marriage.  

The pressure point for the argument must be premise (2). Even if Congress generally lacks the power to insist on a particular definition of marriage, it possesses authority to enact legislation ensuring that state definitions do not cause constitutional violations. Just as Congress could have enacted a valid federal statute requiring the provision and recognition of interracial marriage, for example, Congress can enact a valid federal statute requiring the provision and recognition of same-sex marriage. That's how the argument would go, anyhow.

The interdependence of Section 1 and Section 5 of the Fourteenth Amendment provides some reason for caution relating to the judicial recognition of new rights under the Fourteenth Amendment. The stakes are higher because individual rights and the growth of federal legislative authority go hand in hand. Judicial expansion of individual rights under Section 1 increases federal legislative authority under Section 5. As far as I am aware, however, the only federal circuit court opinion thus far addressing a version of this Section 5 argument in connection with a right to same-sex marriage is Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder.

Judge Sutton's discussion of Section 5 came in the portion of his opinion addressing why United States v. Windsor did not support the application of heightened scrutiny: "A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago--to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead. That would leave the States with little authority to resolve ever-changing debates about how to define marriage (and the benefits and burdens that come with it) outside the beck and call of Congress and the Court. How odd that one branch of the National Government (Congress) would be reprimanded for entering the fray in 2013 and two branches of the same Government (the Court and Congress) would take control of the issue a short time later."

Given the convoluted mess of Section 5 doctrine at present, Judge Sutton may have overstated the expansion of Section 5 legislative authority that would actually result from adoption of heightened scrutiny to analyze the constitutionality of state laws defining marriage as the legal union of one man and one woman. Fresh off of recognizing a new constitutional right to same-sex marriage, Justice Kennedy could try to contain the federalism logic of that expansion, I suppose. But the linkage between Section 5 federal legislative enforcement authority and Section 1 individual rights recognition is undeniable and important. It has also been largely unappreciated up to this point.