Bad History in the DOMA Debate
The plaintiffs in one of the lawsuits challenging DOMA (the first California case to get to the Ninth Circuit) have filed their brief with the court and are reportedly arguing, among other things, that “DOMA is an unprecedented departure from this nation’s federalist tradition, the first time in our history that Congress has intruded on the states’ sovereignty in determining who is validly married.” To twist a famous quote from Justice Holmes, a page of history is worth a volume of misinformation. This argument is squarely in the latter category, as even a brief perusal of history would make clear.
A colleague and I have recently published a law review article which describes a number of instances where Congress has defined marriage for purposes of administering federal programs in a way different from the States, so that states might consider a person married but the federal government does not recognize those marriages. The enabling acts providing for the admission of Utah, Arizona, New Mexico, and Oklahoma as states all mandate a certain definition of marriage (actually the same one as DOMA uses in terms of the number of spouses).
Perhaps more importantly, the Ninth Circuit has access to this information in an amicus brief we filed for the National Organization for Marriage a few weeks ago. We can only hope the court will be more careful than the plaintiffs on this matter.