George F. Will Opinion Writer
DOMA is an abuse of federalism
By George F. Will, Published: March 20
“nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.”
— U.S. Supreme Court,
George Will
Will writes a twice-a-week column on politics and domestic affairs.
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Sherrer v. Sherrer (1948)
The Defense of Marriage Act (DOMA) is an exception to the rule that a law’s title is as uninformative about the law’s purpose as the titles of Marx Brothers movies (“Duck Soup,” “Horse Feathers,” “Animal Crackers”) are about those movies’ contents. DOMA’s purpose is precisely what its title says. Which is why many conservatives and liberals should be uneasy Wednesday when the Supreme Court hears arguments about its constitutionality.
Conservatives who supported DOMA should, after 17years’ reflection, want the act overturned because its purpose is constitutionally improper. Liberals who want the act struck down should be discomfited by the reason the court should give when doing this.
DOMA, which in 1996 passed the House 342 to 67 and the Senate 85 to 14, defines marriage for the purpose of federal law as a legal union between one man and one woman. Because approximately 1,100 federal laws pertain to marriage, DOMA’s defenders argue that Congress merely exercised its power to define a term used in many statutes. But before 1996, federal statutes functioned without this definition, which obviously was adopted for the “defense” of marriage against state policies involving a different definition. “Before DOMA,” an amicus brief submitted by a group of federalism scholars notes, “federal law took state law as it found it.”
The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. This subject is a state responsibility, a tradition established and validated by what can be called constitutional silence: The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The amicus brief takes no position on same-sex marriage as social policy. Rather, it addresses a question that should obviate the need to address whether DOMA violates the constitutional guarantee of equal protection of the laws. The threshold question is: Does the federal government have the power that DOMA’s preamble proclaims, the power “to define and protect the institution of marriage”?
DOMA’s obvious purpose is, as the scholars’ brief says, “to reject state governments’ policy judgments.” Its purpose is to endorse, and to some extent enforce, the traditional understanding of marriage. The scholars’ brief says:
“Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the states’ policy judgments as if it had the same authority to make domestic-relations law as they do. That is the difference between a government with a general police power and a government of limited and enumerated powers.”
Ernest A. Young of the Duke Law School, the principal author of the federalism brief, says the operation of DOMA cannot help but burden states because “federal and state law are pervasively intertwined.” To understand the harm that could be done by an unlimited federal power to define the terms of domestic-relations law, Young recalls when a few states, venturing beyond the national consensus, began experimenting with no-fault divorce. Suppose, Young says, Congress passed a statute refusing recognition, for purposes of federal law, of any divorce where neither party made a showing of fault:
“The couple would continue to be treated as married for purposes of federal income tax, health care programs and veterans’ benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law.”
As the scholars’ brief says, DOMA “shatters two centuries of federal practice” by creating “a blanket federal marital status that exists independent of states’ family-status determinations.” Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. By striking down DOMA — by refusing to defer to Congress’s usurpation of states’ powers — the court would defer to 50 state governments, including the 38 that today prohibit same-sex marriage.
Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.
Read more from George F. Will’s archive.
Read more on this subject from PostOpinions:
Bill Clinton: It is time to overturn DOMA
George F. Will: The shaky science behind same-sex marriage
Jonathan Capehart: Obama continues to make gay history
Jennifer Rubin: On gay marriage, the times have changed
Greg Sargent: Another big, bold step for gay rights
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Comments
jrbascom
11:55 AM CDT
So, imposing same-sex marriage on the whole country is the triumph of "federalism"? I guess "federalism" is OK when it servers the liberal cause, not vice-versa...
Homosexuality is wrong. Human nature doesn't change, and sodomy violates natural law and the final end of sexuality and the family as much today as it did 2,000 years ago.
nagaisu
4:34 PM CDT
You're right. Human nature doesn't change and homosexuality has been around since the beginning of it. Also, by reading the first line of your comment, it is obvious that you didn't understand what the article was about.
Sean Coyle
11:38 AM CDT
For a while now, I've been a supporter of marriage equality. I haven't always felt this way. I used to be verrrrry conservative and thought that marriage should be reserved for a man and a woman. I guess going to college has changed my views on the issue. Having gay friends, and understanding the situation that the country has imposed upon them is definitely the reason I support marriage equality.
For the longest time, however, I've believed that it should be up to the states to decide whether or not it wants to allow "gay marriage" because, after all, if it is up to the states to marry a man and a woman and it should be up to the states to marry a man to a man or a woman to a woman as well. I believed that marriage equality was not something the Federal government should regulate or coordinate. Today, I've realized an error in my thinking. Marriage is a fundamental right of any person, and that all citizens of the US deserve this right equally under the law.
After the 13th Amendment was ratified, it still gave the Southern states the freedom to segregate; it didn't solve civil rights. In cases of interracial relationships, if a white man and black woman (or vice versa) wished to marry, many Southern states would not allow them to. In fact, if the couple were to enter a state in which interracial marriage was illegal, even if they had a marriage license from a state in which they were legally married, they would be be arrested. A valid marriage license from one state would be rejected by a state who opposed interracial marriage. It was not until Loving v. Virginia (1967) that interracial marriage was protected from being voided be a state in which it was not legalized under the Due Process and Equal Protection clauses of the 14th Amendment.
It is the responsibility of the Federal government to protect the rights of its citizens, most importantly when its own states impede upon those rights. The citizens of one state must be protected from laws in another state, when those laws conflict. I believe that if any marriage in one state is valid, it should be valid, recognized, and protected in all states. But this leads to a problem: history has showed that we cannot trust every state to protect a validity declared by another state. Therefore, shouldn't it be up to the Federal government to protect it?
Currently, "marriage" is not explicitly mentioned in the Constitution. I believe it must be explicitly expressed in an amendment for citizens to be fully protected, just as Lincoln felt that emancipation needed to be expressed in the 13th amendment to fully abolish slavery. As Chief Justice Warren wrote in that 1967 decision, "Marriage is one of the 'basic and civil rights of man,' fundamental to our very existence and survival." It is a "fundamental right," that ought to be protected by the Federal government in the Constitution, along with the other "fundamental rights" protected in the Bill of Rights. It should not be left to the states. It is up to Federal government to protect the right to marry, and equality for all its citizens.
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