New York’s new role

Timothy Kincaid

July 26th, 2011

One of the consequences of marriage equality that doesn’t get much attention in the debate is the way in which it impacts a state’s involvement in lawsuits. And yet, this is no small matter.

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.


July 26th, 2011

Where have Connecticut and Vermont been in this fight on the federal front?


July 26th, 2011

The complexities of the US legislative system make my European head hurt.

Just how federal is your federation? Are the states separate countries, or not? In theory, they must be, if they have separate legislations (which isn’t the same as local self-government). In practice, is moving to another state really moving to another country – now, in the 21st century?

There must be some (cultural?) reason why I find this form of federalism so difficult to understand, but I can’t figure out what exactly it is.


July 26th, 2011

P.S. Timothy, I do understand your arguments, but I still find it difficult to understand the underlying system that makes such a situation possible.


July 26th, 2011

Wow, a pleasent surprise that Rick Perry’s comment in Aspen got a cheer from the crowd.

Timothy (TRiG)

July 26th, 2011


You must remember that the US was put together at a time before fast transport was available. Also, the different states have quite different histories. Many inherit their law from England, but some from France or Spain, which have quite different systems (they aren’t common law countries).

Basically, the US system is an early draft at democracy. It’s a bit creaky now, and could do with an overhaul. (Bringing in proportional representation would be a good start, I think. Then they could get rid of the elected monarch and introduce a proper president with far less power.)

Disclaimer: I’m Irish, and probably don’t know what I’m talking about.


Timothy Kincaid

July 26th, 2011


It is a bit confusing. Each state operates in many ways like a country. There is a constitution, a bilateral government, a separate judicial system, taxes, social welfare structures, educational system, and most laws which impact daily life are state laws.

The federal government traditionally dealt with matters such as political and military relations with other countries, ensuring that states honor the civil rights of its citizens and the overseeing the way in which states deal with each other.

Over time the feds have created a number of programs such as government operated retirement and elderly health care system, interstate freeway system, and a large number of bureaucracies that guide the states in matters such as Education, Commerce, Health, Transportation and a few, such as drug policy and speed limits in which the feds pretty much usurped the role of the states and dictated policy.

The balance between a strong and authoritarian central government and smaller more localized control has been a bone of contention since before the nation was formed with constitutional proposals from either extreme. But I think that it would be fair to say that over time the country has become significantly more centralized and that states are slowly taking on the role of ‘local administrators’ rather than autonomous entities.

Russ Manley

July 26th, 2011

Tobias Barrington Wolff, law professor and gay rights activist, has written a detailed explanation of why repealing DOMA will not force all states to recognize same-sex marriages. He also demonstrates that the obligation to recognize marriages performed in another state has never been absolute; interracial marriage is a prime example. The article is at:

To give Darina a clue about our federal system: it works very well most of the time. Different states have their separate laws, but in most things they end up being generally pretty similar because all states have to base their laws on the principles of the federal constitution. Just as different cities in one country can have different laws but still be part of the same country, you see? Only states, of course, cover a much bigger area and have more powers than cities.

Some states were at one time separate countries, like my own state of Texas, but they are not now, and ultimately they must bow to federal authority, if there is a dispute. Our Civil War settled that point.

Timothy Kincaid

July 26th, 2011


We do have proportional government, or that is a component of our system.

From the beginning was the stark realization that the nation was comprised of communities with different values and different economies. The two most serious proposals were either that representatives be selected based on population or that each state (or region) gets one representative.

We settled on both. The Senate is comprised of two representative per state (be it California or Rhode Island) while the House of Representatives would have electors according to population. This way highly populated states with a strongly industrial economy would not overrun smaller population states with a rural economy. Or vice versa.

The President is elected by a peculiar system: a majority of majorities.

Each state has a number of votes according to its population. And each can decide how to assign them. Most states selected a winner-takes-all approach in which it gives all of its votes to the winner of the state vote. But at least one allocates its votes according to the election in a bit of a complicated formulas.

Some people advocate for a “national election” in which each person gets one vote for president. However, less populated states fear that this would result in a campaign season in which candidates simply stayed in California, New York, Illinois, and Texas and in which the candidates would adopt policies that appeal to the values of those states to the detriment of others. And since there are a lot more small states than large states, that’s going nowhere.

While it would significantly shift the policies adopted, it probably would not impact the outcome much. The only president to win the election but not the “popular vote” in recent history was George W. Bush in 2000 and before that you have to go back to Benjamin Harrison in 1888.

(Interestingly the president with the second-highest ever popular vote was Richard Nixon’s reelection on November 7, 1972 with 60.67%. Less than two years later with virtually no public support at all, he resigned on August 7, 1974.)

And as for the power of the President… not much really. He can veto bills. He can set policies and select overseers (subject to Senate approval) for the departments he administers.

The President’s greatest power is “the bully pulpit”, his ability to appeal to the people and put pressure on Congress to advance his agenda. And as the President is the only nationally elected official (other than the completely powerless Vice President), he is given a great deal of deference (especially within his party) and his policies are considered the “mandate of the people”.


July 26th, 2011

I think Perry is for DOMA. He could be for DOMA based on what he said. One could say, “leave things up to the states,” while also saying, “the federal government should keep marriage between a man and a woman.” In other words, same-sex couples can file jointly in New York and it’s not Texas’ business, but those same couple should not for their federal taxes, because heterosexuals marrying is inherently better.

Still wrong, still discriminatory, but probably an OK political platform for someone like Perry.


July 27th, 2011

I agree that the Supreme Court is still ultimately going to have to decide these issues, because backward states like Alabama and Mississippi are never going to vote for marriage equality, much like several other conservative states. Only when the court upholds same rights for all people will this issue eventually be resolved. Hopefully this will happen in the next five years or so.

Burt Likko

July 27th, 2011

Something of a quibble, but one that if taken seriously has profound philosophical implications — states do not have rights. They have powers. Individuals have rights, which are used as checks against the powers of the state or federal governments.

My exercise of a right — say, the right of free speech — is not subject to question or inquiry. “Why did you criticize President Obama just now?” is not a question that I have to answer. “Why did you arrest me just now?” is a question that the police *DO* have to answer.

Once states have rights, then they begin to be able to do things like arrest people, censor speech, and refuse to recognize their marriages — without being subject to any kind of questioning or inquiry. I think the whole point of your post is that the way that pro-marriage states like New York, anti-marriage states like Texas, and the Federal government — all of these governmental entities are properly subject to questioning and inquiry with regards to the way they treat individuals, in this case the way they treat their marriages. And this is as it should be.

Governor Perry’s 10th Amendment take on the issue is, I think, a signal that a group of politicians (who are generally not known for their insistence on procedural formalism so much as their desire for particular policy outcomes) are readying themselves for an eventual defeat on this particular policy fight, a fight that until now they have been mostly winning. New York has signalled to them that their momentum has expired but the momentum of the pro-marriage side of the debate has increased past a critical threshold and will only continue to increase for the foreseeable future. So they apply the balm of procedural formalism to their political wound and move on to the next fight.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.


Latest Posts

The Things You Learn from the Internet

"The Intel On This Wasn't 100 Percent"

From Fake News To Real Bullets: This Is The New Normal

NC Gov McCrory Throws In The Towel

Colorado Store Manager Verbally Attacks "Faggot That Voted For Hillary" In Front of 4-Year-Old Son

Associated Press Updates "Alt-Right" Usage Guide

A Challenge for Blue Bubble Democrats

Baptist Churches in Dallas, Austin Expelled Over LGBT-Affirming Stance

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

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"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.