Opponents of the federal marriage amendment prominently assert, as this Washington Post editorial that I discussed here did, that marriage “has always been a state matter in the American system.” But, as Stanley Kurtz points out, Americans mobilized nationally in the 19th century to combat polygamy. Congress, in an exercise of its power to regulate federal territories, banned polygamy in the Utah Territory. In addition, Congress, in its Enabling Act for the admission of Utah as a state, provided (in section 3, subsection First) that Utah’s admission shall be contingent on its providing “by ordinance irrevocable” that “polygamous or plural marriages are forever prohibited.” (I have read that Congress’s enabling acts for other western states contained similar language, but I have not yet independently verified the point.)
I point this out because Jonathan Rauch, a leading proponent of same-sex marriage, repeats and attempts to defend the Post’s assertion: “Defining and regulating marriage has been within states’ purview since colonial times. (Utah was required to ban polygamy while it was still a federal territory….)” The apparent sense of Rauch’s parenthetical proposition, and the only meaning that would support the primary assertion, is that Congress barred polygamy in Utah only as an exercise of its power to regulate federal territories. As the Enabling Act shows, that is simply not true.No one should oppose the federal marriage amendment on the mistaken understanding that marriage has always been a state matter. As the polygamy example shows, fundamental challenges to the very nature of marriage appropriately invite a national response.
UPDATE: As Justice Scalia sets forth in his dissenting opinion in Romer v. Evans, Congress’s enabling acts for the admission of Arizona, New Mexico, and Oklahoma also required a bar on polygamy.