The Defense of Marriage Act, a bipartisan law signed by President Clinton, implicitly recognizes the power of state governments to enact same-sex marriage laws — for themselves. But it prevents state governments from deciding the issue for other states or for the federal government: These other governments do not have to recognize the same-sex marriages to which some states — in practice so far, that means some state judiciaries — have chosen to grant legal status. In a pair of rulings last week, federal judge Joseph Tauro attacked both defenses.
These decisions were not impressive. Even the editors of the Washington Post, cheering the result, had to concede, “Judge Tauro’s decisions are far from airtight. They do not thoroughly explore basic legal questions.” (That comment ended the Post’s own exploration of those questions; celebration resumed.)
The judge ruled that the act intrudes on state sovereignty and therefore violates the Tenth Amendment. This is absurd. If the federal government may establish a health plan for its employees, it may establish the parameters for that plan. If those parameters are otherwise constitutional, they do not become unconstitutional simply because a state government in which the employee resides takes a different view. To put it differently: Congress would violate no state prerogative by enacting a health plan for federal employees that specified that only opposite-sex spouses qualify for benefits under the plan. So it violates no state prerogative by enacting a statute that says that in all federal laws that refer to spouses, it means spouses of the opposite sex.
Judge Tauro does not truly believe that states have discretion in this matter anyway. He believes that there is no rational basis for the Defense of Marriage Act: It is motivated, in his view, solely by a desire to put gay people at a disadvantage and is thus impermissible. (Not for the first time, “rational basis review” turns out to license the higher form of name-calling.) Opposition to same-sex marriage is not just mistaken, but a form of mindless bigotry: That is the official position of one federal court. It follows, then, that the marriage laws of most states are also unconstitutional. Judge Tauro’s federalist argument is meant as seriously as it should be taken.
The actual motive for having governments recognize the union of a man and a woman (and only such a union) as a marriage is to encourage, in a gentle and non-coercive way, the formation and maintenance of a stable environment in which children can naturally come to be. If heterosexual coupling did not regularly produce children there would be no reason for the institution of marriage to exist, let alone for governments to recognize it.
It may be that the law grants some privileges to married couples that it should extend more broadly, to any duo or trio that pledges mutual support, whether these groups are made up of same-sex lovers, friends, or siblings. But to enable contractual arrangements or encourage caregiving it is not necessary for the government to recognize same-sex romantic relationships as such. There is literally no reason to do that except to make an official statement that marriage has no connection to procreation.
That is, of course, exactly the statement most contemporary liberals wish to make, because they believe it to be true. President Obama has shown time and again that he believes in same-sex marriage but lacks the courage of his convictions. He claims to oppose it, but opposed the California initiative to place that opposition into law; liberals have largely given him a pass because they know his opposition is a lie. Elena Kagan was solicitor general when the Justice Department, in the course of a supposed defense of the constitutionality of the Defense of Marriage Act, gratuitously declared it unjust and attacked the idea that marriage should have any link to procreation. Judge Tauro’s only deft move was to exploit the opening.
The Obama administration has all but thrown this case, and any appeal it makes is likely to be half-hearted. The president and his aides go through the charade because they know that the public does not support same-sex marriage. That’s why the public’s sole allotted role in setting marriage policy is to offer after-the-fact acquiescence.