Bench Memos

Eric Holder and the Spirit of Windsor

On Monday last Eric Holder instructed all DOJ employees to “ensur[e] equal treatment for same-sex married couples.” The attorney general wrapped his directive in the “Supreme Court’s historic decision in United States v. Windsor.” Holder’s directive nonetheless runs contrary to that ruling. For the DOJ is henceforth going to treat same-sex couples as “married” in, for example, Indiana even though my home state does not recognize any such thing. And, if the Windsor decision means anything, it means that the federal government must defer to the domestic relations’ law of each state.

The attorney general professes adherence to a wider spirit of Windsor. The Department will henceforth “interpret the terms ‘spouse’, ‘marriage’, ‘widow’, ‘widower’, ‘husband’, ‘wife’” and any cognate term to include same-sex couples legally married anywhere — including abroad — regardless of the law under which the couple presently finds themselves. Thus, two men married in, say, New Zealand, but who have lived in Indiana for years without recognition of their marriage by any public authority in this country, are now “married” under federal law, even while living in the Hoosier state.

On Monday the DOJ joined a long and growing list of federal departments which have adopted a “state-of-celebration” rule. The IRS and the Departments of Defense, State, and Education (among others) earlier declared their resolve to treat a couple as “married” in every state if their marriage was legally celebrated in any state. They are all in line with the president’s evident dedication to bring same-sex marriage to every corner of our country, notwithstanding the contrary wishes of any state’s citizens or the longstanding policy choices of their political representatives.

With this difference: Holder nowhere in his memo to Department personnel refers to a state-of-celebration rule. He refers instead to either the “place” or the “jurisdiction” of celebration, thus making it unmistakable that he means to subordinate (say) Indiana’s sovereignty over marriage to that of, not only sister states like Delaware, but also  Argentina, Portugal, South Africa, Canada, and all the other “jurisdictions” which have made SSM legal. His intention to do so is most clear in the first footnote to his memo, which says (in part) that “marriages celebrated outside the United States that are not generally recognized in the United States, such as non-consensual marriages, are beyond the scope of this policy.” He does not refer here to polygamous unions, which are not generally recognized in this country as marriages, yet.

This same footnote repeats what the other federal departments have said, namely, that this liberal recognition policy pertains only to couples who are legally married; those in civil unions which are legal marriages in all-but-name do not count. One might wonder why. After all, this administration possesses maximum sympathy for same-sex couples who wish to marry but who live in states which limit marriage to unions of a man and a woman. Why are all these departments abandoning those gay and lesbian couples who have at least made it to a state’s practically identical status?

The answer is simple: better to force those states to adopt same-sex marriage. As experience in the courts of New Jersey and elsewhere has shown, state laws creating “civil unions” typically predicate of them all the benefits of marriage. There are many federal benefits of marriage — but not to couples in civil unions. Eric Holder and his peers are thus making it impossible for these state laws to deliver what they promise to civilly united same-sex couples. So, these civil-unions laws implode.

Perhaps the attorney general thinks that this, too, is the “spirit” of Windsor.

In any event, this latest administration assault upon the rule of law as it pertains to marriage makes painfully clear the urgency of enacting the “State Defense of Marriage Act,” introduced in the House in early January by Texas Republican Randy Weber. Its operative clause declares that, in determining the meaning of any federal law as it pertains to “individuals domiciled in a state,” the term “‘marriage’ shall not include any relationship which that state . . . does not recognize as a marriage.”


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