Jacob Sullum

Section 3 of DOMA, the part Clement was defending, went further, barring the federal government from recognizing state-licensed marriages between people of the same sex. As a result of Section 3, legally married gay couples are not counted as such under 1,100 or so provisions of federal law dealing with matter such as taxes, immigration, Social Security benefits and health care.

Clement portrayed this refusal to acknowledge state-licensed marriages as "one way to stay out of the debate" and "let the democratic process deal with this." Yet with DOMA, Congress very clearly took sides in the gay marriage debate, expressing what a House report called its "collective moral judgment" and "moral disapproval of homosexuality."

Far from protecting state autonomy, Section 3 of DOMA intrudes on it. "The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage," Justice Anthony Kennedy told Clement. "When it has 1,100 laws, which in our society means that the federal government is intertwined with the citizen's day-to-day life, you are at real risk of running in conflict with (the states' traditional authority) to regulate marriage, divorce (and) custody."

Under DOMA, the federal government ignores gay marriages not only in states where they are recognized as a result of judicial decisions, such as Iowa and Massachusetts, but also in states where they are recognized as a result of legislative action, such as New York and New Hampshire, or ballot initiative, such as Maryland and Washington. That result is hardly consistent with Clement's call to "let the democratic process deal with this."

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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