When Defense of Marriage Isn’t

The federal Defense of Marriage Act, like so many pieces of legislation, has a wonderful name. The case of Windsor v. United States is, in part, a study of whether it is actually a wonderful piece of legislation. The relevant part of that legislation 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, the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

For you lawyers, I’ll just briefly say that this case was about finding that gays are a quasi-suspect class and the resulting intermediate scrutiny analysis; there’s a valid question as to whether it was correct to engage in that level of scrutiny, as the dissent argues. For all of us, this case was about whether a woman would have to pay an extra $363,053 in taxes based on the federal government disregarding her New York same-sex marriage with the consequent removal of her “surviving spouse” tax status.

Today’s culture warriors tend to be in favor of laws – any laws, in any branch of government – that seem to be morally correct.

But there is a structure to our system, and the United States Court of Appeals for the Second Circuit expressed it well:

Regulation of marriage is “an area that has long been regarded as a virtually exclusive province of the States.” It has for very long been settled that “[t]he State . . . has [the] absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.”

Ironically – given the smaller government rhetoric of many culture warriors – ceding the regulation of marriage to the federal government is not only counter to the architecture of our government, but it is also tends to take power from the states to the centralized behemoth that is the federal government.

In addition, one needs to consider whether the Defense of Marriage Act is actually protecting marriage in these circumstances. It’s certainly far from self-evident that requiring the plaintiff to pay higher taxes would do much to protect the institution of marriage.

The Court ruled that the Defense of Marriage Act is an unconstitutional violation of equal protection. For many, that bottom line would be enough to denounce the majority opinion. Mindful of this, the majority included an unusual paragraph to that audience:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

One could also say there is a difference between the church validating a marriage and the government granting legal rights and responsibilities to couples. One could argue – as I would – that the states should grant those legal attachments to only heterosexual marriages, but this distinction should be recognized, for the good of both the State and the Church.


Filed under Church and State, Courts, Culture Wars

5 responses to “When Defense of Marriage Isn’t

  1. Richard

    This was a point D.G. Hart was so good at making in his book, “From Billy Graham to Sarah Palin.” Culture warriors, in their zeal to change morals, aren’t very conservative at all, when the use the power of the federal government. Strange that this is still hard to grasp after the failure of Prohibition.

    • Hart’s book also explains the evangelical disinterest in form, which relates to the evangelical right’s disinterest in whether the states or the federal government is used to regulate.

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