Thursday, March 3, 2011

DOMA and Federalism

This is the second of four posts that I am doing on the Defense of Marriage Act. Last week I addressed the Full Faith and Credit clause of the Constitution and how it relates to DOMA. Today I will be dealing with the issue of  Federalism, specifically rebutting the points made in a recent editorial by the Wall Street Journal. Authors David Rivkin Jr. and Lee Casey make the claim that DOMA is not a violation of the Constitutional principle of federalism (which is that both the states and federal government have certain jurisdictions, and they cannot go outside of them legitimatly). 

Rivkin and Casey assert that...
Congress passed DOMA in 1996, when Hawaii appeared to become the first state to recognize same-sex marriages. Had Hawaii done so, it would have immediately raised two fundamental issues. First, would other states be required to recognize gay marriages performed in Hawaii under the Constitution's "Full Faith and Credit" clause? Second, if gay marriage was permitted in some states, would the federal government also be required to recognize same-sex unions—especially in light of the scores of federal laws that grant or withhold some benefit based upon marital status?
Congress answered these questions with a federalist solution. DOMA posits that the definition and regulation of marriage has always been a state issue; it is one of those fundamental "police power" prerogatives the Constitution reserves to the states alone. States have adopted widely differing rules governing who can marry who (first cousins, for example, can marry in Connecticut but not in West Virginia), at what age (most states permit the marriage of 16-year-olds but impose very particular requirements on the young couple), and under what conditions. DOMA preserves this diversity.
 DOMA recognizes and protects the unique constitutional role of the states in deciding these issues. It is through the democratic process within the states that a genuine and lasting resolution to the question of same-sex marriage can and should be found. Today, five states and the District of Columbia permit same-sex marriage. Another four states recognize gay marriages performed in other jurisdictions, and 41 states do not recognize such unions. DOMA protects both legal regimes.
It's true that on the federal level DOMA clearly establishes a preference for traditional marriage. But it does not purport to define marriage for any purpose other than federal programs, which can be expanded to same-sex couples on a program by program basis, as President Obama has already done in many areas.
      Considering that these two men are practicing lawyers and are defending 26 states against the Healthcare mandate, I am surprised that they seem have little knowledge of what federalism actually is and how the founders set up our system. If a federal law defines something that it is not supposed to define - per the Constitution - would that not make said federal law unconstitutional? Is the federal government really letting the states decide the issue, when if the states do so, they run the risk of violating federal law?

      In my opinion, DOMA clearly violates the principle of federalism contained within the Constitutions 10th Amendment. It reads,
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.
      Rivkin and Casey really only give us one justification for DOMA, and that is the application of marriage equality laws to those states that have anti-gay marriage bans; aka the application of the Full Faith and Credit clause. As I dealt with that objection last week and how flimsy it is, it makes me wonder why they believe the way that they do. Is social ideology once again conflicting with the conservatives love of the Constitution and thus they must find a defense for their position, not matter how ridiculous?

       To be a truly Federalist solution, the states should decide who can and cannot be married - unless of course the Judiciary rules on the constitutionality of state marriage bans - and the federal government should accept the state's position. That is how the federal government deals with all other applications of marital law. If for example the state of Connecticut allows two people to be married, a marriage that may not be legal in Mississippi, the federal government still recognizes that marriage. DOMA does not allow the federal government to be a neutral player in the marriage debate and instead has allowed it to pick a side, something that it Constitutional should never have been able to do.


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