National Review / Digital
Federalism and Marriage
The Supreme Court should stay out of the way

David Boies and Ted Olson at a press conference, San Francisco, 2010 (Steve Rhodes/Demotix)


When supporters of same-sex marriage attack the federal Defense of Marriage Act, they invoke purported federalism concerns about the authority of the states to regulate marriage. But when they sue to strike down state marriage laws as unconstitutional, those federalism concerns disappear. The Supreme Court’s recent decision to review lower-court rulings against both the Defense of Marriage Act and California’s Proposition 8, which reinstated traditional marriage in that state, provides the Court a clear opportunity to set right the relationship between marriage and federalism. It should rule that both DOMA and Prop 8 are constitutionally sound.

Let’s start with DOMA. President Clinton signed DOMA into law in 1996, after it had been approved by overwhelming majorities in Congress — 85 to 14 in the Senate and 342 to 67 in the House — including lots of strong supporters of gay rights (then-senator Joe Biden among them). DOMA defines “marriage,” for purposes of provisions of federal law only, as “a legal union between one man and one woman as husband and wife,” and it provides a corresponding definition of “spouse.”

The Supreme Court challenge to DOMA arises in U.S. v. Windsor. Edith Windsor married her longtime same-sex partner, Thea Spyer, in Canada in 2007. The two resided in New York. When Spyer died in 2009, she left her estate to Windsor. Because Windsor did not qualify as a spouse under DOMA, she was ineligible for the spousal deduction from the federal estate tax and incurred a hefty tax.

The question before the Court is whether DOMA violates the Constitution — specifically, the so-called equal-protection component that the Court has discerned in the Due Process Clause of the Fifth Amendment. (The 14th Amendment’s Equal Protection Clause applies only against the states.) In other words, is it a violation of equal-protection principles for the federal government to define “marriage,” for purposes of provisions of federal law, in a way that excludes same-sex couples who are recognized as married under the law of the state in which they reside?

In its ruling striking down DOMA, a divided Second Circuit panel, in a sloppy opinion, asserted that Congress has “historically deferred to state domestic relations laws” in applying provisions of federal law, and it condemned DOMA as “an unprecedented breach of longstanding deference to federalism.” This trumpeting of the federalism concerns raised by DOMA’s challengers cannot withstand scrutiny.

Far from effecting any departure from past practice, DOMA merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. DOMA doesn’t intrude at all on a state’s authority to regulate marriage under state law. It doesn’t nullify or prohibit any marriages, or in any other respect preempt the operation of state law. On the contrary, it leaves the states free to define, or redefine, marriage as they please. That point is illustrated by the fact that nine states (as well as the District of Columbia) have adopted same-sex marriage since DOMA’s enactment.

DOMA’s definition of marriage merely establishes what marriage is for purposes of provisions of federal law. Under our system of federalism, the states and the federal government have sovereign authority over their respective domains. Thus, DOMA respects and implements federalism by exercising the federal government’s authority over federal law.

Congress has often found it convenient to use state-law marital status in federal laws and programs. But it has never accepted state-law marital status as constraining how those laws and programs operate, and there is no reason that it should. For example, under provisions of the Internal Revenue Code, a person who is legally separated from his spouse, but not yet divorced, is treated as unmarried, as is a person whose spouse is a nonresident alien. Likewise, under the immigration laws, a marriage entered into for the purpose of gaining an immigrant’s admission will be disregarded even though that marriage remains valid under state law. How could anyone imagine that federalism means that a state’s authority to regulate marriage for state-law purposes should intrude on how the federal government operates in these and other areas?

December 31, 2012    |     Volume LXIV, No. 24

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  • Florence King reviews The End of Men and the Rise of Women, by Hanna Rosin.
  • Bruce Cole reviews Glittering Images: A Journey through Art from Egypt to Star Wars, by Camille Paglia.
  • Robert Dean Lurie reviews Who I Am: A Memoir, by Pete Townshend.
  • Ross Douthat reviews The Hobbit: An Unexpected Journey.
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