A funny thing happened to the Zeitgeist last week as it was rolling through the federal courts, with judges striking down the laws on marriage in state after state and installing same-sex marriage. Suddenly there was a jarring halt on Friday. An appellate panel in the Court of Appeals for the Sixth Circuit turned back a challenge to the laws on marriage in Ohio, Michigan, Kentucky, and Tennessee. Judge Jeffrey Sutton wrote for the two–one majority, and if he didn’t produce a lasting halt to the Train of History trying to roll past, he gave us at least a critical time-out. But the time he bought for us would be misused if we let ourselves be lured by the possibility that Judge Sutton’s opinion, crafted so carefully, would lead Justice Anthony Kennedy to find the better angels of his nature or to recover the jural mind he once used to show. Instead, the time bought for us has given us the moment to act politically. The election last week, bringing in a new Congress, gives us the setting and the people to accomplish that political move.
In this case of DeBoer v. Snyder, Judge Sutton composed a careful opinion, drawing on the lines of analysis most familiar to lawyers and judges in recent years, but he deployed those lines in rejecting, point by point, the string of arguments that have been accepted all too credulously by federal judges as they went about declaring the deep wrongness, in law, of marriage defined as the union of one man and one woman. Judge Sutton wrote in a worldly way, with flashes of wisdom: “People may not need the government’s encouragement to have sex,” he wrote. “And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish.”
But at the same time, Judge Sutton strained his arts in flattering Justice Kennedy. No doubt with a guiding purpose, he affected to adopt as his own every adverse judgment that Kennedy had put in place against people who had sought to withhold an endorsement of the homosexual life or cast up barriers in the law to same-sex marriage. For reasons of judicial statecraft, Judge Sutton was willing to imply that these people had descended into the bigotry or “animus” that Kennedy had imputed to them. But all of this seemed to be done in the service of persuading Kennedy that this decision, sustaining marriage as we have known it, is quite compatible with the decision written by Kennedy in the Windsor case more than a year ago.
In that case, Kennedy insisted that the states must be the prime locus and authority for the laws on marriage. The federal government was not to use the weight of its laws or influence to favor marriage as we have known it and to support states that may want to resist same-sex marriage. Kennedy created then this possibility: Two gay or lesbian couples, legally married in New York, could move, one to Texas, and the other to Illinois. The couple moving to Texas would not have its marriage recognized in local law. And federal law, taking its guidance from local law, would not consider the couple as “married” under the laws on taxes. But the couple moving to Illinois would preserve its marital status both in both state and federal law.
This state of affairs seemed highly implausible, and not likely to survive a serious challenge. Judge Sutton summoned all his arts to show that his arguments sustaining the laws on marriage could be handsomely reconciled with the scheme Kennedy professed to put in place in the Windsor case. The question then is whether Kennedy could be induced to respect this version of what he had wrought. And would he do that even at the cost of overturning all those decisions by federal judges, echoing his deep moral premises, while they went about striking down the laws on marriage in a cluster of states?
In the aftermath of the decision in the Sixth Circuit, some have been inhaling the heady fumes arising from Judge Sutton’s dramatic break, and they seem earnestly to be cultivating the hope that Justice Kennedy might indeed be cajoled and persuaded. But we would waste the gift that Judge Sutton gave us if we diverted ourselves at this moment with that kind of illusion. Justice Kennedy will not be cajoled even by these overdone gestures to placate him. What Judge Sutton has given us is a decision that breaks the momentum of the other side. It conveys, with a jolt, that this issue of marriage and the law has not really been “settled.” Not yet. Judge Sutton, as I say, has bought us time. But time for what? The decision in DeBoer has opened up the possibility for something serious to be done on the political side. This is the moment for Congress to put its hand in, as it did with real effect 18 years ago with the Defense of Marriage Act (DOMA). And as in 1996 we will have again, come January, a Congress containing, in its governing majority, the men and women willing to act on the matter of marriage.
#page#Senator Ted Cruz has already signaled his intention of filing a constitutional amendment on marriage. But that will be dismissed as a romantic, futile gesture, and for that reason not taken too seriously. It would be taken more seriously, though, if it were attended by one or two simple measures that may be readily enacted next year as ordinary laws. Those measures have been hovering since the Windsor case was decided. The first is the Defense of State Marriage Act proposed by Representative Randy Weber (R., Texas). That bill would take Justice Kennedy seriously and give him what he professes to want: that marriage would be defined in the states; that federal law would take its definition of marriage from the state of anyone’s domicile; and that a state then would not be forced by the federal courts to adopt same-sex marriage.
As it turns out, federal agencies have been going in the opposite direction from the courts, deciding that a marriage would be attributed to the state in which it was celebrated, not to the state where the couple is now domiciled. But that arrangement would make a nullity of Justice Kennedy’s opinion, for it would allow the authority of the states to be undermined. And Representative Weber could bring in a distinctly federal interest here. As he has observed, his bill “would require the federal government to defer to the laws of a person’s state of legal residence (domicile) in determining marital status.” His bill would mark a genuine federal interest, tied in with the power that Justice Kennedy ostensibly wished to preserve in the states. For the bill would determine the ways in which federal agencies were uniformly bound to define the site or domicile of marriage, even as they take their definition of marriage from the separate states. Representative Weber’s bill would put the question to Kennedy in a sharp way as to whether he is willing to take seriously the scheme of the law that he himself described with such conviction in the Windsor case. And yet, by next year, Hillary Clinton and other leading Democrats will probably have swept past Kennedy’s position. They appear poised to argue that we have now accepted the rightness of same-sex marriage, and so it is a patent injustice to say that the gay or lesbian couple, married in Maine, may not take their marriage with them to Texas.
A second measure, though, would make things a bit harder for these Democrats. That would be a version of what was proposed initially by Carrie Severino, a former clerk to Justice Clarence Thomas: the Defense of Monogamous Marriage Act (DOMMA). The challenge was posed years ago: If marriage were detached from the function of begetting, what would confine marriage to a coupling? Some people claim that their loves are woven into larger ensembles of three or four. Polygamy has been making a comeback in the Southwest, and some estimates have put the number of “polyamorous” households in this country at 50,000. The Democrats have insisted that their position in favor of same-sex marriage does not entail the acceptance of polygamy or polyamory. Well, here is their chance to show that they mean what they say. And in poetic justice, it ought to fall to them to explain to these ensembles of earnest people just why they “won’t be permitted to marry the ones they love.”
But of course DOMMA could be tied up in challenges springing from the Windsor case, for the question will be raised as to why the federal government is treading again into the domain of marriage in the states, even for the purpose of preserving the authority of the states, and preserving the most morally coherent form of marriage. Carrie Severino may come up with a more refined version herself, designed to evade the challenges. And yet those challenges, I think, can be answered, and we should not relieve the other side from the burden of pressing them in the courts.
In the meantime, while the challenges are unfolding, my own hunch is that Hillary and the Democrats will find it harder to come down in defense of polygamy. And why should we spare them the strain? Besides, the strain has its uses: If the Democrats resist, we might find the legislatures in 30-plus states joining this move to reject polygamy — and the further disfiguring of the laws on marriage. That might begin to suggest the figures sufficient to pass a constitutional amendment. If the alignment of states falls into place, and some movement is generated toward a constitutional amendment, that momentum may well draw in the fuller defense of marriage: The same constituency may be willing to take the next step and restore those laws on marriage that have been struck down in the wave of peremptory moves by federal judges.
One source of opposition to these moves should not go unnoticed: namely, the Republican leadership in Congress. For the last two years that leadership has sought to avoid the issues of abortion and marriage as being likely to distract from the opposition to Obamacare and Obama. And now, in the aftermath of the election, we can expect the leadership to fear charges of being drawn away from its central mission in order to go on a jihad for the social issues. Here, as ever, the leadership has shown a remarkable blindness to the issues that really do cut to the core of our institutions and the central mission of the government in protecting life. They also misgauge the depth of interest, among Republican voters, in these issues that really touch the terms of principle on which families, and political regimes, are constituted. But the leadership may discover that these concerns can be gently accommodated without any need to be diverted from the mission of dismantling Obamacare, along with other fearful additions to the Administrative State. For the bills on marriage can be put forth as simple measures, reflecting judgments widely shared in the public. Those measures can be enacted as ordinary statutes, and not with the cymbals crashing just yet for a constitutional amendment.
Judge Sutton has delivered this unexpected gift. The question now is whether we have the wit and agility to use deftly the time he has won for us.
— Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and founder of the James Wilson Institute on Natural Rights & the American Founding. He was also one of the architects of the Defense of Marriage Act.