This article points to the ways in which current legal challenges to the 1996 Defense of Marriage Act rest upon assertions of traditional state authority to define marriage. Here, for example, is how New York, Vermont, and Connecticut put it in their amicus brief in Windsor v. U.S., a case in which Edie Windsor challenges the federal government’s authority to collect taxes on the estate her partner (they were married in Canada) left her.
- Since the founding of our Nation, the whole subject of domestic relations, including the determination of marital status, has been committed to state law and state policy judgments.
- It is, and always has been, the role of the States to determine who is married and who is not.
While these arguments are deployed on behalf of states that regard DOMA’s federal “definition of marriage” as anathema and that employ very strong language to characterize those who don’t recognize same-sex marriage, it remains the case that they affirm each state’s authority to define marriage for itself. Those states that wish to adhere to a traditional definition of marriage are free to do so.
To be sure, I suspect that this affinity for federalism is more strategic than principled. I fear that these particular friends of the state authority to define marriage will soon insist that what Congress cannot do in defense of traditional marriage, the federal courts can do on behalf of “marriage equality,” with a warrant, perhaps, from the Fourteenth Amendment’s Equal Protection Clause.
Traditional state authority in this arena may not survive the next Supreme Court appointment by a Democratic president. But we can always argue, citing these decisions, and the briefs giving rise to them, that this is a state matter, to be determined by the states, resting upon the kind of prudential and policy judgments state legislators are qualfiied to make.
September 10th, 2012 | 4:24 pm
“While these arguments are deployed on behalf of states that regard DOMA’s federal “definition of marriage” as anathema and that employ very strong language to characterize those who don’t recognize same-sex marriage, it remains the case that they affirm each state’s authority to define marriage for itself. Those states that wish to adhere to a traditional definition of marriage are free to do so.”
This is absolutely true.
DOMA is ridiculously unconstitutional. If states adhere to trandiotnal marriage they shoud be able to do so.
I personally think that a rapidly diminishing number of states will actually do so. But federalism is just as important to liberals as it is to conservatives.
September 11th, 2012 | 5:25 am
The federal government has no place in treating people as second class citizens under the law. Since this is about Federal rights, over 1200 of them, this is not about the religious definition of marriage, it’s about marriage as defined by a contract of commited loving couples under the law. If people only knew the devastating effects that the so called DOMA has caused, the unnecessary suffering, the families it has torn apart in the case of bi-national couples, I don’t believe for one minute that they would support DOMA. Same sex couples have always said fine if you don’t want to call it marriage, then don’t, call it “Life Partners” or whatever but give as the same FEDERAL rights. It is ridiculous that the United States which is a land that was founded upon a dream of freedom and equality, still in the year 2012 does not treat its own citizens equally under Federal Law, even in many other 1st world countries that may not “call it marriage” they still provide same sex couples with the basic fundamental federal rights, like tax, immigration, medical, insurance etc etc etc these are the rights that would make it live up to its name of equality. Instead you have perfectly legit and long term married couples running around the world trying to find a country that will grant them exile. We are one such couple, An American Citizen, a Foreign Born spouse of 10 years who were forced out of the US solely because of DOMA, no other law or reason stood between us and our right to live together. If we were of opposite sex we would have had this right over 10 years ago. So there you go, you take two IT Specialists who had a home, a strong community bond, a loving family, who paid taxes just like every other person, and now we live in exile, destitute with no legal right to work or get support solely because of DOMA. That is the reality of DOMA. It’s time for people to wake up and smell the coffee. It’s bad enough that we are bullied as children then only to grow up and be bullied by the Federal Government soley because we are gay. We worked for what we had, our home, our family, our careers and then we were spat out. Now you have idiots like John Boehner spending almost a million
dollars of your money trying to defend DOMA?? Please don’t make me vomit. This is the kind of cruelty that America criticises other countries for, apartheid, how hypocritical DOMA.
September 11th, 2012 | 11:40 am
Gavern — fantastic comment–couldn’t have said it better myself. I am in the same boat. The exceptional cruelty of DOMA is beyond belief. How can our government justify this appalling treatment of its own citizens? That’s American exceptionalism for you, I guess. Boehner and his republican colleagues should be ashamed.
September 12th, 2012 | 5:51 pm
Me and my American partner are in the same position as the above. Not many realize the damage DOMA does. My older American partner will be moving to the UK next month because he isn’t allowed to sponsor me for a green card. I was in the States for several years on a student visa, but it’s far too expensive to keep that up. I was unable to work as a student, and I was required to pay out of state tuition. If I were married to someone of the opposite sex, I would be able to work as a student, and we wouldn’t have to pay so much money on college. It’s not fair that we are forced to being apart again because of money problems. Almost all Western Countries allow immigration rights for gay people. America needs to do the same. I hope the Courts look at DOMA very soon. It’s too bad the Congress are unwilling to repeal it.
Links
Blogs
Find Us
Contact