Federal Defense of Marriage Act does not violate states’ rights

Jordan Lorence
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Posted: Jul 28, 2010 10:42 AM

The federal court in Massachusetts got its history and constitutional law wrong with its ruling that the federal Defense of Marriage Act violates “states’ rights” and federalism in defining marriage.

For all federal law, DOMA defines “marriage” as one man and one woman and “spouse” to mean a husband or a wife. The district court struck down this federal definition of marriage in two decisions claiming that it intrudes on state sovereignty to regulate marriage, as well as other constitutional provisions.

This extreme decision ignores extensive American history showing federal oversight of the states’ definition of marriage. But a double standard on “federalism” lurks here. If states have authority under the 10th Amendment to define marriage, why are federal courts, like the one in San Francisco, not immediately upholding state constitutional definitions of marriage, such as the one currently under attack in California? Is it because California voters chose to define marriage the “wrong” way as one man and one woman?

The federal government does not infringe on that state authority when Congress defines legal terms for its own laws that it enacts. Congress needs to define marriage for such purposes as federal tax laws, veterans’ benefits, etc.

Although state governments regulate marriage, as the federal court ruled, they have no authority to redefine marriage. This is clear from the important half century of American history from the 1800s that the court ignored, of Congress requiring new states to ban polygamy (that is, define marriage as one man and one woman) as a condition of statehood.

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When the Utah Territory first applied for statehood in 1848, its Mormon-dominated legislature claimed the power to legalize polygamy. Congress refused to allow it, so it conditioned Utah’s statehood on its agreement to amend its state constitution to ban polygamy. Additionally, Congress required Utah to agree that this anti-polygamy provision of its state constitution could never be changed without permission from Congress. So, when first confronted with a state seeking to redefine marriage, Congress said no.

Utah refused, triggering a half century of court battles and conflicts. The Republican Party’s response in its first platform (1856) pledged to ban the “twin relics of barbarism” in the territories – slavery and polygamy. As federal authorities cracked down on polygamy in Utah, the polygamists’ claims for a constitutional right to polygamous marriages reached the U.S. Supreme Court. In 1885, the Supreme Court ruled in Murphy v. Ramsey that it is constitutional for Congress, when setting the conditions for a territory to “take rank as one of the coordinate states of the Union,” to require those new states to define marriage as a union of “one man and one woman.” Congress viewed it essential that all states hold to the same definition of marriage. Utah finally agreed and became a state in 1896. Four other states have anti-polygamy provisions in their state constitutions.

This respect for “states’ rights” in Massachusetts disappears in the federal court challenge to the California marriage amendment, which began as Proposition 8. If the definition of marriage is solely a state concern, then the federal court should have quickly dismissed the lawsuit challenging California’s amendment. But because it defines marriage as one man and one woman, its opponents claim it violates the 14th Amendment’s guarantees of equal protection and due process.

This creates a nifty “double team” to batter marriage laws. If states redefine marriage to include members of the same sex, the activists are willing to say that the states are exercising their independent authority under our federalist system (even when Massachusetts’ high court imposed this result by a 4-3 decree). But 10th Amendment autonomy disappears when activists challenge the constitutionality of state laws defining marriage as one man and one woman. So, states have total freedom to define marriage…unless, of course, they define it the “wrong” way.

Over time, this constitutional “double teaming” will not produce “marriage equality,” but marriage deterioration as a matter of law. No state will be allowed to maintain a uniform definition of marriage because every person will have the right to marry the person(s) of his or her choice. If every government must acquiesce to each individual’s marriage choices, the legal concept of marriage will erode and eventually dissipate. This may inspire current-day polygamists to challenge those old Supreme Court decisions as obsolete. Apparently they could find a friendly federal court in Massachusetts.