The statement at issue:
"In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the First Circuit [Court] attempts a bridge too far. Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too."
- Dale Schowengerdt, a lawyer on the "marriage litigation team" of the Alliance Defend Fund, in a comment to The New York Times on May 31, reacting to the First Circuit's decision striking down the federal Defense of Marriage Act's ban on any federal marriage benefits for same-sex couples who are legally married under state law.
We checked the Constitution, and...
For as long as the issue of same-sex marriage has been debated in legal and political circles, a seldom-interpreted provision of the Constitution has been a part of the debate, sometimes prominently, sometimes lurking in the background. It is in Article IV, the so-called Full Faith and Credit clause. And that presumably is what attorney Schowengerdt had in mind in voicing concern about the potential spread of gay marriage -- and, he added, plural marriage (polygamy).
He may have been premature, because the court fights so far have focused on whether there is any right, wide or narrow in scope, for gays and lesbians to get married. The First Circuit Court's ruling on Thursday did not establish any such right, but it did declare that, if a state has chosen to allow such marriages, Congress will have to come forward with stronger reasons than it has so far for denying those who marry under such a state law the federal employment, insurance and tax benefits that are available to opposite-sex couples.
The reasons Congress gave for enacting such a ban in 1996 in the federal Defense of Marriage Act, the Boston-based Circuit Court said, were not sufficient to justify a deep intrusion into the states' traditional control over marriage. As a result, it struck down DOMA's benefits ban, in Section 3.
But the decision emphasized that the court was not dealing with a separate part of DOMA. That is Section 2, in which Congress -- invoking its powers under the Full Faith and Credit clause -- declared that no state or territory could be required to honor a same-sex marriage performed in another state. Section 2's validity was not challenged in that case, the court noted.
That, of course, is the next-phase dispute, and it definitely will arise if this decision, or any other decision providing legal protection for gay marriage, is ultimately upheld by the Supreme Court. (Most courts that issue such rulings are likely to put them on hold until the Supreme Court can act, as the First Circuit did Thursday.)
The dispute probably will get started when a legally married same-sex couple moves to another state, one that forbids such marriages, and wants to remain eligible for federal benefits won in the First Circuit decision. Most of those benefits, though, are provided directly by the federal government, so the state of residence of gay spouses would not affect those provisions.
There are, however, some other federal benefits that are keyed to state-provided benefits, and those, too, are forbidden by DOMA. With the Circuit Court's new ruling, those, too, presumably would have to be provided to a legally married same-sex couple. Would those travel with them to a no-gay-marriage state? That will be the constitutional issue under the Full Faith and Credit clause, and it probably would require the courts to decide whether Section 2 of DOMA is, itself, unconstitutional as too deep an intrusion into states' prerogatives or as discrimination based on hostility to homosexuals.
As for attorney Schowengerdt's concern about polygamy spreading if one state should uphold such plural marriages, that touches on a form of union to which -- so far -- no state and no court decision has given its blessing. It is true that, in a federal court in Utah, there is a lawsuit pending by the Kody Brown family -- the polygamist family that stars in the reality TV program, 'Sister Wives' -- and that lawsuit is moving ahead despite state officials' attempts to get it dismissed.
Once again, though, that is a first-round test of a right to enter a particular kind of marriage, and the potential future spread of that legal concept to other states would, also, depend upon the outcome of the Full Faith and Credit issue.
The Supreme Court has not dealt with polygamy in 134 years, and that 1878 decision (Reynolds v. U.S.), upheld government power to punish plural marriages as a crime. The constitutional issues might be different now, and that, it appears, is what worries attorney Schowengerdt.
Recent Constitution Daily Stories
Defense Of Marriage Act heads to Supreme Court
Constitution Check: Has America's basic document made American politics much worse?
Top 8 Hatfields and McCoys of Politics
The Supreme Court in the Hatfield-McCoy feud
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.
Follow Lyle Denniston on Twitter: www.twitter.com/ConDailyBlog
Carlos A. Ball: Why the Supreme Court Should Hear the DOMA Lawsuit
Fondly,
Canada
You are helping to maintain the smoke-and-mirrors distraction designed to keep gay Americans from their right to equal protection under the law.
Every citizen. Therefore, if a law grants one citizen the right to do something, then ALL citizens have the right to do the same thing. This isn't arguable. It's right there. Spelled out very simply. And yet, we have a President, V-President, Senators, Congresspersons, all who took an oath to uphold and enforce the Constitution completely ignoring THE part of the constitution which answers the question. If ANY citizen of the United States can marry another citizen of the United States, than EVERY citizen of the United States can marry another citizen of the United States, as defined by the 14th Amendment.
As a constitutionalist, how do you rationalize this behavior?
I appreciated your discussion of the hows and the whys but just like "inter-racial" marriage...the final action on "marriage equality" will come from the SCOTUS.
With the continual testing of DOMA by the GOP, TP and the right, the SCOTUS will probably have its first encounter with this very soon.
If this fails..who will take down the Constitution and Declaration of Independence? Who will remove the sign from the bottom of the Statue of Liberty?
The religious right and their backers either PAY TO PLAY by paying taxes at their religious sites, etc...or they keep their noses out of MY CIVIL RIGHTS. For as Moss III said.. this is about civil rights..not religious rites.
We are 20,000,000+ strong in the U.S. and we are NOT going away and we will NOT be silenced by ignorance.
You are clueless.
But we've gotten so used to the government determining every aspect of our lives, we don't even question it any more. Who we may marry, what sort of contraception we can use, what size drink can we buy, the list goes on. Bah.
The Constitution also states in Article 6 that the Constitution and laws made in "pursuance thereof" is the supreme Law of the Land (Supremacy clause) and no individual stae constitution or law shall supercede it. Nowhere does the Constitution gives authority to the government to determine who may marry whom. In fact, one could argue that one's religious practice, protected under the First Amendment, allows alternate forms of marriage.
So if your neighbor wanted to have 4 wives or 9 husbands or marry a person of the same gender, just how will that affect You? Will it change your property taxes? Will it stop you from coaching Little League? Will it suddenly force you to marry against your wishes? Nope.
If the government wants to debate on individual rights according to the Constitution, then they jolly well better start following it.
Is self-marriage for you?
By Craig Johnson
June 01, 2012
Only for the lonely? Many singles have walked the aisle
It's a reminder 'not to betray myself,' says one bride-groom
"With this ring I me wed."
Jennifer Hoes just celebrated her ninth wedding anniversary -- to herself.
On her 30th birthday in 2003, the Dutch woman had a self-wedding, complete with cameras. While it would be premature to call it a trend, several people since then have taken the vows of self-marriage as a way of contractually binding themselves to matrimonial values.
Anderson Cooper’s talk show recently featured a woman who had wed herself, and even took herself out on dates. “I started discovering that the love I need, it’s in here,” Nadine Schweigert said, pointing to her heart.
The part about "Congress may...proscribe... the effect thereof" could be interpreted as allowing Congress to proscribe how States shall give effect to marriage licenses issued by other states.
The actual text of DOMA section 2, does not quite do that. Instead of proscribing the effect of a "marriage license", or "marriage", it attempts to distinguish between a marriage "between persons of the same sex", and other marriages. That is, exactly, the same distinction that has been struck down, twice now, by federal appeals courts.
So, of course, there would be further litigation. It seems, there is always further litigation.
A better question would be "if I marry my first cousin in Kentucky, would she still be my sister?"