Marriage Laws and Federalism

With two cases being heard in the Supreme Court next week--Hollingsworth v. Perry, which is on the appeal of Proposition 8 in California, and U.S. v. Windsor, which concerns the constitutionality of one section of DOMA--it is well worth it to think again about federalism and the meaning of marriage in regards to the law--whether it be on the state or federal level--in this country.  Hadley Arkes has a great essay on just that, and I would highly recommend reading the whole thing.  Here are the highlights, beginning with why DOMA was passed in the first place:

The crisis sprang upon us in 1993, when the Supreme Court of Hawaii invoked the Equal Rights Amendment of that State and confirmed what the opponents of the national ERA had argued in the 1970's: that a constitutional provision barring discriminations based on sex would be used to strike down the traditional laws on marriage and install same-sex marriage. This case of Baehr v. Lewin administered a jolt to the people of Hawaii and spurred moves in the legislature to counter that decision. Eventually these moves culminated in the passage of a constitutional amendment to reserve marriage as a relation between a man and a woman. 

But with the decision hanging out there in Hawaii, there was the serious concern that one State could install same-sex and then go on to "nationalize" same-sex marriage for the country as a whole on the basis of the Full Faith and Credit Clause (Art. IV, Sec 1). That is the clause leading us to expect that the marriage validly performed in one State would be respected in another. Already we were hearing of ads placed in gay newspapers: Come to Hawaii for a vacation, get married, and take your marriage back home to Connecticut. That decision in Hawaii could be taken then as the first current carrying the problem. The second one hit in 1995 with the decision of the U.S. Supreme Court in Romer v. Evans. The reigning understanding has been that a State could refuse to credit a marriage coming in from another State if the receiving State had, incorporated in its laws, an objection to this form of marriage. We saw this at work of course with interracial marriages. But now the Court, in Romer, was knocking out that prop. 

The voters of Colorado had amended their Constitution to hold that

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

The move was meant to undercut those laws enacted in different cities to bar discriminations against gays and lesbians. Gays and lesbians were not put beyond the protection of the laws (as Justice Scalia pointed out). They were just not to be treated as "victims" on the same plane as the victims recognized in the other statutes dealing with discrimination, say, on the basis of race, religion, ethnicity, or sex. To put it another way, people would be left free to honor their own judgments about the morality of the homosexual life in their private enclaves. If people wished to have a gay bar, in which straights or even women were not welcome, they would be free to have them. And at the same time, people would not be threatened with penalties if they gave pamphlets on psychotherapy to their gay employees, or refused to rent rooms in their houses to homosexual couples. 

With Justice Kennedy writing, the Supreme Court struck down that move by the voters in Colorado to amend their constitution. The decisive line in his opinion would carry through to Lawrence v. Texas in 2003, and provide the very ground of the challenge now to the Defense of Marriage Act. The key line was that any objection to the homosexual life could be explained only as a result of an irrational "animus" or blind hatred. In other words, it was no longer tenable for a State to incorporate in its laws a moral objection to the homosexual life. And therefore—as the argument will run today—any refusal on the part of the State to credit a same-sex marriage coming in from another State would have to be regarded as based on an irrational animus with no "rational" ground to support it. 

And that is what brought forth DOMA. For some of us could see, as Edmund Burke would say, "a hurricane in a cloud no bigger than a hand at the very edge of the horizon." We could see that something larger was building. We wanted the Congress to take up that mandate again of the political branches in giving a lead to the courts on a constitutional matter. After all, the matter became, inescapably, a "federal" matter when litigants would come into federal courts, invoking the Full Faith and Credit Clause of the Constitution. They depended on the federal Constitution to spread same-sex marriage to other States, and so the question would have to fall to the institutions that could pronounce on the meaning of the Constitution and the federal laws.

It seems that those conservatives and libertarians who have been arguing for the unconstitutionality of DOMA (i.e., George Will) and simply wish for marriage to be confined to the states are behind the times.

Engaging friends of ours have put forth arguments [on the unconstitutionality of DOMA] that are at least interesting, and for all we know, may also be true. In any case, a serious argument deserves to be heard and seriously measured. But what I hope we would not lose from sight is the awareness of that purpose that brought forth DOMA. And what our friends should be obliged to tell us is this: If DOMA goes, what in fact keeps one State from nationalizing same-sex marriage? The matter cannot be left any longer entirely in the hands of the States because the Supreme Court, this branch of the federal government, has already intervened with Romer v. Evans and undercut the authority of the State to refuse to accept the same-sex marriages coming in from other places. Behind all of these arguments is the ultimate question of whether we are seeking to preserve marriage or whether we are willing to treat with indifference its dismantling by the courts. If DOMA is faulty as an instrument, would a measure more deftly drawn accomplish the same end in a more defensible way? If marriage as we know it cannot be defended without running afoul of the Constitution, does that mark, for the critics, a serious moral fault in marriage itself? Or do they earnestly think that something in the Constitution itself inhibits the defense of marriage?

As Arkes maintains, the issue became federalized by the proponents of same sex marriage in the early 90's.  DOMA was itself a federalism measure designed to keep in tact the laws of the other states as well as laws on the federal books concerning the definition of marriage.