In Defense Of…

DOMA: The Confusing Legal Precedent Of State v. Federal

Yesterday the Supreme Court of the United States (SCOTUS) heard the case involving California’s Proposition 8, but today the court heard the case involving the Defense of Marriage Act (DOMA).  It’s the second of the two cases involving gay marriage.  So what is DOMA?  The Defense of Marriage Act was signed in 1996 by President Bill Clinton, and it defined marriage as between a man and a woman for federal and interstate purposes.  Section 2 of DOMA states that no state or territory has to recognize a same-sex marriage that is performed legally in another state.  Section 3 states that for federal purposes, a marriage is between a man and a woman only.  When the law was passed in 1996, no state had legalized same-sex marriage.  Today, there are 9 states and the District of Columbia that have legalized same-sex marriage, but the federal government has refused to recognize them.  There are several ways the court could rule with this case.  One is to strike down the entire law as unconstitutional, another would be to just strike out Section 3, and, of course, it could say that the law is legal via the Full Faith and Credit Clause of the US Constitution which is how the law was argued in Congress in the first place.

supreme-courtIn an op-ed piece in the Washington Post on March 20, conservative columnist George Will stated that marriage is performed at the state level and not at the federal level, and that until DOMA, the federal government had always just gone along with the states on the issue of marriage.  He’s half right and half wrong.  Yes, marriages are done at the state level.  This would be why at weddings the power is invested by God and the state, not the federal government.  Where Mr. Will gets it wrong is that the federal government hasn’t ventured into the marriage issue until DOMA.  In 1862, Congress passed the Morrill Anti-Bigamy Act which stated that having more than one spouse (bigamy) was illegal.  It was passed as a way to target the Mormon practice of plural marriage, which was then in the Utah territory.  The law was challenged in 1878 in the case Reynolds v. United States.  The Supreme Court ruled that religious duty was not a defense to a criminal indictment.  Reynolds was a Mormon and had multiple wives.  He had claimed that as a Mormon male, it was his religious duty to have multiple spouses.  The Morrill Anti-Bigamy Act would be amended in 1882 by the Edmunds Act and again in 1887 by the Edmunds-Tucker Act.  The latter would be fully repealed in 1978.

There is also the case of Loving v. Virginia (1967).  This is different as it didn’t challenge a federal rather law, but rather state laws that banned interracial marriage.  In its decision, the Supreme Court ruled that Virginia’s anti-miscegenation laws (and thus any of other state that had such laws) were in violation of the Due Process Clause and the Equal Protections Clause of the 14th Amendment.  In writing the decision for the unanimous court decision, Chief Justice Earl Warren stated, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 9th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
10th Amendment

Other than the 14th Amendment, the 9th and 10th also could come into play with the court’s decision.  In setting precedent in 1965 on the 9th Amendment, the court ruled that “personal rights should not be denied simply because they are not listed” in the Constitution.  This would almost seemingly fall right into what Chief Justice Warren said with the Loving case in 1967 in that marriage is a right; therefore, it cannot be denied by government.  However, to fly contrary to this argument would be the 10th Amendment that powers not delegated to the United States by the Constitution are given to the states.  In going back to George Will’s argument from earlier, marriage is a state issue.  States still cannot violate the Constitution, but it still doesn’t determine where the line for DOMA falls at.  In Sherrer v. Sherrer (1948), the Supreme Court stated that, “[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.”  This would make the argument for the 10th Amendment; however, it flies in the opposite direction of the Loving case from 1967 which makes the case for the 9th and 14th amendments.

gay-marriage-debate-thumb-320x240-9845It’s interesting that the Supreme Court took up this case at the same time it’s deciding California’s Proposition 8.  The decision in the DOMA case could very well be intertwined in how the court rules in the Prop 8 case.  Does the court rule that all of DOMA is unconstitutional, which would go along the same lines that determined the Loving case or does it rule that that only Section 3 is unconstitutional in that the federal government must recognize same-sex marriages that are performed legally in states where it is legal?  If the court rules that the Prop 8 decision only applies to the state of California and none of the others that have banned same-sex marriage, then it would seem the more logical decision in the DOMA case would be to rule that Section 3 is unconstitutional only.  If the court rules that the Prop 8 decision applies to California and all the other states that have banned same-sex marriage, then the it would seem more plausible that all of DOMA would be ruled unconstitutional as well.  The big difference between the Loving case and the DOMA case is that the Loving case involved state law, and the DOMA case involves federal law.  It would seem that in order to challenge the states that have passed same-sex marriage bans (other than California) would require an entirely different lawsuit.  Remember, California stripped away the right of same-sex marriage after it had already been granted; whereas, other states banned same-sex marriage before such action could be taken.

Earlier this month in Sacramento, Justice Anthony Kennedy stated that, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”  That might lead to a conclusion on the bigger issue as it basically means to leave it to the states to make up their own minds.  However, that still doesn’t address the issue in regard to the federal government’s role with DOMA.  And here’s one last twist to make the end result even more confusing.  If the court strikes down only Section 3 thus making the federal government recognize same-sex marriages that are performed in states where it is legal (though still allowing the individual states to decide on their own), how will it work for those individuals that get married in a state where it is legal but live in a state where it is not?  And could this question… this confusion… actually influence the court’s decision?  The days are numbered for Section 3, but the bigger question is whether the rest of DOMA will follow.  Where will history write the final chapter on this particular law?

UPDATE:
DOMA: Oral Arguments – Audio
DOMA: Transcript

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The Rights of the People
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