July 26th, 2011
States have rights. Constitutionally, our nation has divided its powers between issues of national concern (such as defense) and issues of state autonomy (such as licensing of professionals). Family law, including the criteria for marriage, has been traditionally considered to be the purview of the state while the role of the federal government has been primarily limited in this area to interstate conflicts or civil rights protections.
But the Defense of Marriage Act (DOMA) is an exception. It presumes, in paragraph 3, that the federal government holds veto power over marriage and can – for any matter that impacts any federal program – replace the state’s criteria with its own. If the marriage criteria in Vermont doesn’t meet the approval of the Senator from Alabama or the Congressman from Mississippi, then by securing a bare majority of fellow legislators they can dictate to Vermont which of its citizens can be considered married for Social Security, taxation, and health care, and which are deemed by Alabama and Mississippi to be unworthy.
This encroachment into the territory of the states was likely in violation of the US Constitution from the start. But that didn’t really matter for so long as states were limiting marriage to opposite sex couples. Courts are not receptive to abstract victims or potential loss of theoretical rights; to present your case, you need to be an aggrieved party.
And when New York’s legislature enacted marriage equality, it became an aggrieved party. Having authorized same-sex marriages, the state not only assumed the burden of protecting these marriages, but became itself a victim of federal infringement through DOMA3, and assumed the burden of protecting itself.
Actually, New York is a bit unusual in that the state recognized – though through legal interpretation rather than legislation or judicial determination – out-of-state same-sex marriages prior to their vote. So there has been, for some time, a theoretical right (though perhaps not obligation) to protect such couples as were abiding in the state but married elsewhere. But the vote removed any ambiguity; marriage equality is now the public policy and interest of the state.
And so, New York State Attorney General Eric T. Schneiderman has begun to defend the state’s interests. In an amicus brief (pfd) filed in the case of Windsor v. United States, in which a widow was denied tax provisions granted to heterosexual widows, he said:
By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.
Schneiderman’s also objects to the discrimination of New Yorkers on the basis of sexual orientation and sex, and those objections are important. That is an obligation of a state and the brief is valuable in that matter. But Windsor’s lawyers can defend her interests and do so competently.
Where Schneiderman’s argument is invaluable is where it is unique, it’s defense of its own interests.
But DOMA departs from the tradition of federal respect for the States’ definition of marriage, flatly rejecting the definition of marriage in New York and five other States and thereby elevating the choices of some States above those made by other States. In doing so, DOMA threatens “the constitutional equality of the states [that] is essential to the harmonious operation of the scheme upon which the Republic was organized.” Coyne v. Smith, 221 U.S. 559, 580 (1911).
As Schneiderman implies, some State’s criteria for marriage is being applied, and it isn’t New York’s. To elevate Alabama’s laws to a national status and impose them on New York is precisely the sort of concern that consumed the constitutional convention and the US Constitution was written specifically to negotiate to what extent the separate autonomous states would act as one. Even individual rights were an afterthought.
From that time forward, Congress could not grant itself authority over matters belonging to the states. These are matters of the states alone, and the role of the federal government, congressional or judicial, has been interstate disputes and protecting the rights of the individual against the state. But Congress overstepped its bounds, and New York has joined that small club of states who have a cause to complain.
This position echoes and reinforces the position taken by Martha Coakley, the Attorney General for the Commonwealth of Massachusetts, in Commonweath v. HHS. Her lawsuit also seeks to defend the rights of Massachusetts to define the criteria for marriage for its citizens.
Politically, this issue is an area in which our opponents are awkward and in conflict. Long loud advocates for states’ rights and federalism and smaller centralized government, Republicans are uncomfortable talking about DOMA and its provisions. It is quite one thing to deny equality to gay people but the idea of championing the usurpation of a state right by Washington threatens not only party rhetoric, but a core principle which many Republicans hold dear.
Which is perhaps one reason why you don’t hear much from Congress or from party leadership in defense of DOMA. The presidential candidates, especially those who seem to be counting on the presumed stupidity of their base, try to simultaneously appeal to anti-gay prejudice and states right advocates by babbling nonsense about “respecting the decisions of the states” and also “supporting a constitutional amendment”.
But outside of the social-issue focused religious conservatives, you don’t hear many people defending the merits of DOMA. Even John Boehner, who has taken up the task of defending the law, talks more in terms of letting the courts rather than the President decide the law’s constitutionality and speaks only in the abstract about the nature of the law or defense of its merits. And even Texas Governor Rick Perry, a strong opponent to gay rights in Texas, surprised some conservatives with his take: (AP)
“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me,” he said to applause from several hundred GOP donors in Aspen, Colo. “That is their call. If you believe in the 10th Amendment, stay out of their business.”
Ultimately, there need be (and will be) a Supreme Court decision that finds that discrimination on the basis of sexual orientation by the federal, state, and other government is in conflict with the US Constitution. But now that more than ten percent of the nation’s citizens live with conflicting state and federal marriage criteria, it may be the violation of the Tenth Amendment upon which DOMA is decided.
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Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"
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