States and Marriage: The Continuing Story
State attorneys general in the 33 states with laws supporting natural marriage are heaving big sighs of relief. With the U.S. Supreme Court order issuing a stay in the ruling striking down Utah's marriage amendment, states have a bit more breathing room in their effort to maintain democratically-enacted provisions that define marriage as the union of one man and one woman. That effort has continued in the months since last summer's Supreme Court ruling in the United States v. Windsor.
Windsor struck down the federal definition of marriage in the Defense of Marriage Act (DOMA) because it denied recognition to a same-sex marriage that was viewed as legal by the plaintiff's state of residence. In doing so, the Court directly affirmed the states' "historic and essential authority to define the marital relation." In fact, the Windsor ruling went to great lengths to chastise the federal government for wandering into policymaking territory the Court said was up to the states. In strong terms, the Court condemned federal efforts "to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws." That clear language initially gave confidence to states and citizens that their particular interests in marriage as a public institution would be respected by the federal government. The departure from that posture in certain federal regulatory actions which have undermined state laws on marriage has thus been profoundly troubling.
Fortunately, to accompany this week's stay from the Supreme Court in the Utah case, additional good news for states came out of the House of Representatives with the introduction of a common-sense bill by Congressman Randy Weber of Texas. His legislation – the State Marriage Defense Act – affirms state authority on marriage and directs the federal government to look to the laws of a person's state of residence to determine the person's marital status for federal purposes. This simple choice-of-law provision is necessary because, without Section 3 of DOMA, the federal government now has no federal law to guide its determination of marital status.
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That legal quagmire has prompted contradictory approaches by federal agencies in the months following Windsor, with some agencies basing marital status determinations on the laws of a person's state of residency and others looking to laws of the place in which a marriage was celebrated. With the latter approach, federal agencies have pushed to recognize certain relationships as marriages, even when the couple at question resides in a state that specifically does not recognize their relationship. The practical effect of such federal actions is an undermining of state policy on marriage – something the Windsor Court explicitly condemned. The most recent example emerged with the Department of Justice's recent announcement that it would recognize certain same sex couples in Utah as married even though the Supreme Court's stay on Monday halted such unions and Utah has said it won't recognize such relationships as marriages during ongoing litigation.
Regardless of one's views on the definition of marriage, all Americans should agree that this Administrative chaos harms the democratic process. Congressman Weber has provided a simple solution that gives states confidence their policy will be respected and that reins in the lawlessness of the Executive Branch. The State Marriage Defense Act ensures federal determinations of marital status for federal laws are based on a state's law, thereby carving out space for individual states and citizens to continue the national marriage debate.
While social conservatives will continue to make the case that natural marriage, which unites a man and a woman, should serve as the bedrock of all levels of family law, all proponents of the rule of law and fair debate should take heart from the pushback against an undemocratic rush to force the redefinition of marriage in every state.
