In his latest Chicago Tribune column, libertarian Stephen Chapman argues for the repeal of the 1996 Defense of Marriage Act (DOMA). Appealing to the federalism created by the framers of the Constitution, Chapman says he’s in favor of “letting subsets of the national population get their way in their own locales.” That’s what would be happening now, he claims, if it weren’t for DOMA, which withholds recognition of same-sex unions as marriages under federal law. Never mind that in every state but Vermont where same-sex marriage has been adopted, it has been imposed by judicial fiat–hardly a case of “subsets of the national population get[ting] their way” in the republican fashion envisioned by the framers. (Even in Vermont, the recent decision of the legislature occurred a decade after judicial blackmail forced the state to adopt civil unions that were marriages in all but name.)
Ignoring the deep involvement of judicial tyranny in this matter, Chapman calls for the federal government to return to its old “policy of staying the hell out” of an area traditionally governed by the states. It would be best, he claims, to “leave it up to individual states to decide who may wed–and then honor those diverse choices.”
That sounds like Chapman wants the states to be free to decline recognition of same-sex marriages contracted elsewhere, doesn’t it? That’s what the other half of DOMA does, so maybe Chapman wants to repeal only part of the act. Remember, DOMA does two things: it defines marriage, for purposes of all federal laws and the rights and burdens derived therefrom, as between one man and one woman; and it permits states to decline to recognize marriages not fitting that definition if they are contracted in other jurisdictions.
So does Chapman want to repeal the first of these provisions, and keep the second? No. By the end of the column, he’s complaining about the non-recognition provision as well. “Usually, states are obligated to enforce contracts made in other states,” and that’s the rule that he argues should prevail here too. So much for federalism, which in this respect is not offended by DOMA but protected by it.
“Usually” is not quite “always,” of course. For many years, states have been permitted to deny recognition to marriages contracted in other states (or foreign jurisdictions) if they had strong “public policy” reasons for the denial. Cousins too closely related, or spouses too young, could sometimes trigger trouble for couples moving from one state to another, or even just passing through. The validity of their marriage in its place of origin didn’t always settle matters. “Back in the segregationist years, Southern states often honored interracial marriages transacted beyond their borders,” Chapman notes. But surely he knows that “often” isn’t “always” either–the Lovings, a Virginia couple whose case led to the invalidation of anti-miscegenation laws in the Supreme Court, were validly married in D.C.
All these examples of non-recognition, of course–the arguably defensible and the indefensible alike–involved persons whom everyone understood to be capable of marrying each other. They were all opposite-sex couples. Same-sex marriage introduces the problem, for the first time in the known history of any civilization, of the legal uniting in “marriage” of persons hitherto universally thought to be incapable of marrying each other. Most Americans still think that, although a determined band of liberal elites and a number of compliant “progressive” judges have foisted the opposite view on a handful of states. That’s why DOMA was passed: it provides every state holding fast for conjugal marriage with a shield behind which to protect its institutions, decisively bolstering its “strong public policy” reasons for non-recognition of same-sex unions contracted elsewhere.
The universal adoption of same-sex marriage in the U.S. may happen despite DOMA. (That’s why some of us want a federal marriage amendment.) It is virtually certain to happen, and with astonishing speed, if DOMA is repealed. And the American people will have little or no say in the matter, in either their states or the councils of the national government.
Stephen Chapman is too smart not to know this. He claims that the diversity of federalism will “let a hundred flowers bloom” after the repeal of DOMA. Not on your life. His “federalism” would mean uniformity, not diversity–the rapid victory of same-sex marriage nationwide.
If Chapman reminds you of another Stephen from Illinois–a senator 150 years ago named Douglas–there’s a reason. Douglas was all for local “subsets of the national population get[ting] their way” on the slavery issue. But Abraham Lincoln smoked him out, noting that his “declared indifference” about the spread of slavery really amounted to a “covert real zeal” for seeing it legalized everywhere. Stephen, meet Stephen; you’re peas in a pod.