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Well, it didn’t take any special insight to know that this would be happening. One look at the similarities between the question of slavery in the 1850’s as related by Lincoln in his House Divided speech and the issue of gay marriage today had me predicting last week that this would be happening. Notice that the argument by Massachusetts is that before DOMA the federal government recognized that defining marital status was the exclusive prerogative of the states.
In principle I would agree with them – the only problem is that while a nation may survive being divided over how high the taxes should be in each state it cannot survive being divided over the definition of marriage any more than it could survive being divided over the perpetuation of slavery.
12 replies on “Massachusetts Sues Over DOMA”
The argument that Massachusetts is making doesn’t make any sense. DOMA does not infringe upon the rights of a state to define and manage marriage; in fact, it has quite the opposite effect by preventing legalization in one state to result in automatic legalization in all other states.
That’s not entirely accurate. The primary effect of DOMA was to allow one state not to recognize gay marriages legally performed in another state but DOMA also defined the federal definitions of “marriage” and “spouse” with marriage defined as “a legal union between one man and one woman.” That second part is where their complaint is centered.
The federal definition, though, has no effect upon the state definition. If the state were truly arguing for separation of powers, it would not be trying to force its definition at the federal level via lawsuits.
It’s true that the federal definition has no effect upon the state definition, but they are arguing that the federal definition requires them to discriminate against same sex couples because the state is not allowed to confer federal benefits on those couples that are enjoyed by couples that meet the federal definition.
Well… that’s the problem with accepting federal funds, isn’t it? All federal dollars come with strings and conditions. If they don’t like it, they can always refuse to accept it. Or they could lobby to move the program back to state responsibility. Both of those are, as far as I am concerned, acceptable solutions that properly apply federalism. Suing the federal government to bend to your will? Not so much.
There I agree with you. Unfortunately too many people want to have their cake and eat it too. Nobody who suggests having the state take those programs upon themselves – even just for those people who do not qualify for the federal benefits – will be taken seriously in this country.
Let’s take a look at the full faith and credit clause in Article IV Section 1:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
A state sanctioned marriage is a public act and a public record. Congress can prescribe the manner in which such things are to be “proved” and can also prescribe the “Effect” of proving them. But neither the federal government nor any other state can apparently simply refuse to recognize any Tom fool thing any state may legally come up with.
This was part of the reason that the Dred Scott ruling found that no anti-slavery state could refuse to recognize another state’s slavery laws, so long as slavery was not prohibited by the Constitution. Of course, the court went on to rule that no state could prohibit slavery in any manner whatsoever.
Are we headed that direction on same-sex marriage? Maybe. But DOMA supporters claim that the law simply prescribes the effect of having proved a state law. It should be easy to see why DOMA opponents disagree with this. It is also instructive to note that some states accept Utah’s concealed weapon permit, while others do not, and no one is making a serious case that these states that do not accept the permit are acting unconstitutionally.
Is the full faith and credit clause overly broad? If so, how would you amend it? How would you get such an amendment passed?
This is truly a sticky matter. I don’t know if I agree that it will ultimately split the country as badly as did the slavery issue. But the parallel is not unwarranted.
I don’t think the Full Faith and Credit clause is too broad. By itself it leaves the door wide open to every state being forced to recognize “any Tom fool thing any state may legally come up with” but it is not by itself. There is a hierarchy of laws – federal laws supercede state laws – especially if they precede them. The federal government may accept the right of states to have variance, but the states have little grounds to complain just because they are not allowed to offer federal benefits in contradiction to existing federal laws.
I’m sure that the case will not follow that argument – the only sure way to put this out of the reach of division between states would be through a federal constitutional amendment.
I wonder how you quantify how badly the country splits over an issue. If that is a matter of how much of the populace takes a firm stand on the issue then I am confident that it will split the nation as badly as slavery did. If the degree of the split is based on how violent the two sides become then I believe that the nation is more likely to split into separate nations than it is to resort to widespread armed warfare over this issue.
Slavery was contained in a region of contiguous states that had a very different economic model than did the non-slave states. Even then, some slave states were persuaded to side with the Union. As the writing on the wall became more clear, the pro-Union slave states voluntarily abolished slavery; although, they knew that the shift to a new economic model would prove painful.
The rebel states, on the other hand, were very insistent on maintaining as much of their old economic system as possible. They managed to hold firm to that for a century after the war.
There is no similar parallel in the debate about marriage. The differing states do not have significantly differing economic models and the regional isolation that helped sustain the South’s hierarchical cultural economic system does not exist. Although most currently pro-same-sex marriage states are in the Northeast, this is not universally the case, nor will it continue to be the case.
Same-sex marriage proponents view the model more akin to the abortion issue than to the slavery issue. Action and debate on that matter went back and forth. Various states had various policy approaches to it. All that was needed, however, was an activist Supreme Court intent on mandating a single universal standard long before the public debate was close to being over, and then the rest of the U.S. rolled over on the issue. There is still a lot of heated rhetoric and there have been legal challenges. But there was no war and no significant national split.
I see your point on the parallels with the slavery model, but I seem to see more parallels with the abortion model. The Supreme Court as of late has rarely been a model of clear judicial activism. Its rulings have often been efforts to seek some kind of muddled middle ground. However, that could change if we continue to have a Left leaning president and congress. Justices don’t live forever, you know. If we lose a couple of constructionist justices and get a couple of expansionist justices, we could easily see a repeat of Roe v. Wade on the marriage issue. If that happens, I seriously doubt we’d see any significant split. As with abortion, the states would whimper and then go back to what they were doing.
I agree that this looks more like the abortion issue than the slavery issue as far as they way that society is divided (non-regionally and with no real economic connections to the issue) but while the states appear to have rolled over on the abortion issue there is still a lot of heat generated by the issue and I think it is premature to say that fire is out. In that way I believe that the gay marriage issue would again follow the lines of the abortion issue and the two issues would largely merge – the heat and energy of both issues may be enough to get the nation boiling over again. Whether or not those two issues are enough to do it I can’t say, but I am confident that the nation has not yet arrived at the crisis-point where these issues will finally be settled once and for all.
I think you are right that there will be some kind of amalgamation of the two issues, and I also agree that both issues will continue to generate a lot of heat.
The Supreme Court’s 1973 abortion rulings have resulted in 3½ decades of rancor on the issue, and there’s no sign that it’s over yet. There is very little heat surrounding this issue in other democratic countries where the matter was allowed to run its full course in the public forum. The Supreme Court cut short the natural public debate on the issue by accepting the idea that immediately creating a uniform national standard was more important than public involvement. This top-down method went against the bottom-up method preferred by our culture and system of government, with the result that the hearts and minds of a significant portion of the population have never accepted the moral validity of the outcome.
I think that this should be instructive to people on both sides of the marriage debate. Forcing through some kind of top-down political or judicial solution will fail to resolve the matter. It may take more than a generation for the matter to achieve some kind of solution that percolates from the ground up, but the final result would be accepted more universally.
I absolutely agree. My biggest fear with regards to gay marriage is not that it gets legalized, but that it gets legalized through a top-down court decision rather than bottom up legislation and social/political tug-of-war. It looks like top-down is preferred approach of gay marriage advocates so opponents naturally defend their position with a top-down strategy as well.
That is why I am confident that it will come to a crisis before it can come to a resolution.