Bench Memos

Representative Weber in Defense of Marriage

Earlier today Representative Randy Weber (R., Texas) introduced the State Defense of Marriage Act (HR 3829). It is the necessary and entirely sound response of Congress to the Supreme Court’s same-sex “marriage” decision last June.

In U.S. v. Windsor the Court threw out Section 3 of the federal Defense of Marriage Act (DOMA). Section 3 was an all-purposes definition of marriage; that term meant, in all places where it appeared in federal law, the union of a man and a woman. The term “spouse” pertained to those party to such marriages and none others. The Windsor Court ruled that the national government must instead “defer” to each state’s marital regime. The main reason was to establish a vertical uniformity of treatment within each state: Any couple married in New York, for example, was married there for all local, state, and federal purposes. The prosaic effect of Windsor was that Edith Windsor became “married” for federal estate-tax purposes because New York recognized her Canadian “marriage” to her late lesbian lover.

But Windsor ignored an obvious complication: Which state? What if these New York “spouses” had relocated to Indiana before either passed away? Or to Texas? Or to any of the 30 other states that do not recognize same-sex relationships as legal marriages? Is Uncle Sam supposed to “defer” to the law of their domicile state — Indiana or Texas — or to that of where their “marriage” was celebrated?

There are many reasons of history, sound policy, and a proper grasp of federalism why the answer is: domicile. The Obama administration instead decided to treat as “married” for most federal purposes every couple who married anywhere in the United States. This decision is surprising, and even bizarre, for it would re-institute the sort of vertical dis-uniformity which the Windsor Court sought to eliminate. Newly domiciled Hoosier Edith Windsor and “spouse” would be married federally but not for state law purposes. They could jointly file a 1040 as “married.” But they would have to be strangers on their Indian returns.

The administration’s decision is nonetheless unsurprising, for it is obviously committed to promoting same-sex “marriage” wherever, and whenever, it can do so.

Representative Weber is to be applauded, and his bill supported. HR 3829 does what it can to promote genuine marriage within existing legal constraints, and that is sufficient reason. But it is worth noting, too, that even those possessed of a different view about marriage could support HR 3829, for it is required by a proper regard for the rule of law within our constitutional order. 


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