Over the weekend, I wrote about President Obama's Friday interview with MTV, during which he responded to a question about marriage equality with the statement, "I think for us to try to legislate federally into this is probably the wrong way to go." As I mentioned in my piece, the president's words marked no shift in his administration's policy and matched statements that he had previously made on the issue, but I also highlighted an ABC News report that read, incorrectly, "Asked if he would use his second term as a platform to overturn the Defense of Marriage Act, the president demurred, saying he viewed it as an issue for the states to decide."
The title of this post is intentionally misleading, because marriage equality is both a federal issue and a state issue. But this fact is often glossed over in the mainstream media's coverage, leading to confusion (and sometimes contradiction) on things like the Defense of Marriage Act (DOMA), state marriage laws and, of course, federal lawsuits regarding both. In this post I will thoroughly lay out which aspects of the marriage equality movement pertain to federal law and which pertain to state law, explaining the consequences that this federal/state split have for marriage equality gains in both the judiciary and the legislature.
Marriage Law in the United States
From the very beginning, the United States has been exactly what its name suggests: a union of individual state governments, each with its own laws and public policy. When the founders laid out the system through which these states would come together and function as a federal government, they were careful to delineate which governmental powers were reserved for the federal government and which were the sole province of the states. Only the federal government can declare war, for instance; police power, on the other hand, is substantially reserved as a responsibility of the states.
Marriage law has historically been a province of state law in the United States. Marital and family law, in fact, fall under the broad umbrella of the states' police power authority, as the Supreme Court recognized in the 1979 case Hisquierdo v. Hisquierdo, in which it ruled that "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." It was up to the states to decide whom they wished to marry and whom they did not, and as a result, marriage laws differed greatly from state to state on such characteristics as the age at which individuals could marry and, unfortunately, the racial composition of the couple.
The federal government, on the other hand, has historically deferred to the states in determining whether not a couple is married when it decides whether to treat that couple as married or unmarried for the purposes of federal benefits. In certain instances, the federal government has imposed additional requirements on married couples seeking to qualify for certain federal benefits (for example, the federal government scrutinizes marriages in which one partner seeks a change in immigration status for the other partner, in order to make sure the marriage is not a sham), but for the most part it has left the decision of who is married and who is not to the states to decide.
Marriage Equality in State Law
Because the states get to decide who can marry, it is up to each individual state to choose whether or not to extend those rights to same-sex couples. In some states gay and lesbian couples have been given equal marriage rights by the legislature (for example, Vermont, New Hampshire, Maine and New York). In others, such as Massachusetts, Connecticut, Iowa and California, these rights have been extended by a state court. (The legislatures of both Washington and Maryland have also voted to extend equal marriage rights to same-sex couples, but those laws will only go into effect if they are approved by a vote of the people this November.)
Of course, as the states giveth, so may they taketh away. Maine's marriage equality law was placed on hold and then later voted down by a ballot initiative; California's Supreme Court decision requiring marriage equality was reversed by a vote of the people in favor of Proposition 8. States can either ban marriage equality by statute (that is, under a normal law), which can be held unconstitutional by a state court (as was the case in Iowa and California, for example), or they can amend the state constitution to prohibit marriage equality, as Prop 8 did. Such constitutional amendments cannot be overturned by state courts, because those courts are bound to base their decisions on the text of those state constitutions.
State Marriage Equality Laws in Federal Court
This is where marriage equality starts to become a federal issue. Under the Supremacy Clause the U.S. Constitution is the highest law of the United States, which means it supersedes the state constitutions. Whereas state courts do not have the power to modify state constitutions, federal courts do -- that is, they can invalidate a section of a state constitution if they find it to be in violation of the U.S. Constitution.
This is exactly what happened in the Prop 8 case (originally called Perry v. Schwarzenegger, then called Perry v. Brown and now called Hollingsworth v. Perry). The American Foundation for Equal Rights filed a suit in a Northern California federal district court arguing that Proposition 8 violates gay couples' equal protection and due process rights under the federal constitution. Both the district court and the Ninth Circuit Court of Appeals agreed, striking down the law. That case is now before the Supreme Court, the nation's highest federal court, which will have the final say on the law, should it choose to take up the appeal.
Two other challenges to state marriage laws are currently pending in federal court. In the first, Jackson v. Abercrombie, a federal district court in Hawaii ruled that the state's decision to limit marriage to heterosexual couples was constitutional. That challenge in now before the Ninth Circuit. The other case, Sevcik v. Sandoval, is currently awaiting a decision by a district court judge in Nevada.
The Defense of Marriage Act (DOMA)
And then, of course, there is DOMA. It is perhaps the most misunderstood aspect of marriage equality law in the United States, but it is nevertheless quite straightforward. In 1993 the Hawaii Supreme Court handed down a decision in a case called Baehr v. Miike holding that the state must demonstrate a compelling interest in limiting marriage to heterosexual couples only. Opponents of marriage equality worried that the Baehr decision would lead to Hawaii offering marriage to same-sex couples, and that the other states in the union would then be required to recognize such marriages under the Full Faith and Credit Clause of the U.S. Constitution, which holds that "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."
In 1996 Congress passed DOMA, and President Clinton signed the bill into law. The law has three sections, the first of which explains its name. The second reads:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 2 was thus a move by marriage equality opponents to keep the Full Faith and Credit Clause from being used by gay couples to force states to recognize their out-of-state marriages. Section 3 of DOMA, on the other hand, reads:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.
This section is the crucial one, because it broke from established precedent and established, for the very first time, a uniform, federal definition of marriage. It's worth noting that there were no states with marriage equality when DOMA was passed in 1996, so the law had no immediate effect at all, but in 2004, when Massachusetts became the first state to offer equal marriage rights to same-sex couples, the federal government was mandated to treat those couples as unmarried for the purposes of federal law and federal benefits.
Because DOMA is a federal law, it can only be overturned by Congress or the federal courts. On the first count, there is currently a proposed bill in Congress, called the Respect for Marriage Act, that would repeal DOMA. The law was approved by the Senate Judiciary Committee on a party-line 10-8 vote in November 2011, but is unlikely to move any further in either house, given the current makeup of Congress. In terms of the courts, DOMA has already been ruled unconstitutional by several district courts and two circuit courts, most recently the Second Circuit, based in New York. Four different DOMA cases have been petitioned to the Supreme Court, which is likely to take up at least one of the cases and rule on the law's constitutionality by next June.
It is important to recognize what kind of impact the repeal or overturning of DOMA would have. An end to DOMA would not mean that all states in the union would suddenly have marriage equality. Just as importantly, it would not mean that states without marriage equality would be forced to recognize marriages from other states. The various challenges to DOMA making their way through the federal courts are only directed at Section 3, the definition of marriage, and not Section 2.
Moreover, as The New York Times pointed out in 2004, when then-President Bush was calling for a constitutional amendment against marriage equality, states are free to choose which out-of-state marriages they recognize and which they do not. "No state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to," Northwestern University law professor Andrew Koppelman told the Times. When the Supreme Court ended bans on interracial marriage in 1967 with the decision Loving v. Virginia, it did not require these states to recognize other states' interracial marriages; rather, it struck down every state's ban on such marriages. That's a nitpicky legal point but an important one.
About That Constitutional Amendment...
As President Bush did in 2004, Republican presidential candidate Mitt Romney supports an amendment to the U.S. Constitution that would define marriage as solely between a man and a woman, according to his website. Such an amendment would essentially become a kind of super-DOMA, and it would be out of the reach of both Congress and the federal judiciary, modifiable only by another constitutional amendment. This would be another way of federalizing marriage equality law in the way that DOMA currently does. The effect of such a constitutional amendment on the thousands of same-sex couples who have already entered into marriages in the seven states that have marriage equality (along with the District of Columbia) is unclear.
With all these elements in play, it's not surprising that the American public and sometimes the very reporters who cover these issues get confused about the federal/state divide in marriage equality law. What's important to remember is this: It's up to the states to decide who can and can't get married. DOMA represented an unprecedented intrusion of the federal government on a matter that has historically been reserved to the states, and it will likely by struck down by the Supreme Court. When that happens, it will be up to the states to decide whether or not same-sex couples can get married, and whether or not they want to recognize out-of-state marriages for same-sex couples. The type of nationwide marriage equality law referred to in the question to President Obama during the MTV interview would be constitutionally suspect for the same reason that DOMA is. It should be in the states, and the states alone, where the debate about marriage equality continues.
This piece originally appeared at Prop8TrialTracker.com.
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