Federalism and Same Sex Marriage: The Role of the Federal Government - Article Example

Federalism and Same Sex Marriage: The Role of the Federal Government The legality of same sex marriage is a complicated issue. With s divided internally and externally on the issue, it is clear that the United States is not ready to reach a consensus. Despite the fact that the United States Constitution does not try to define marriage in any way, states are now trying to do so with increasing regularity. The federal government has already stepped in with its two cents worth with the Defense of Marriage Act (DOMA), but now the question is clearly whether or not the federal government really should have a say in the matter of defining marriage. Former Georgia Representative Barr, who drafted the DOMA legislation, carefully worded the act so it would respect the states’ right to determine their own definitions of marriage, while defining on a federal level (for Social Security benefits and tax-filing purposes, among other things) that marriage is between a man and a woman (Herald Sun, para. 8). For now, federal courts are staying out of states’ way, allowing them to sort out the issue individually without enacting federal laws (News and Observer, para. 11). Same sex marriage is currently allowed at the state level in five states (Connecticut, Iowa, Maine, Vermont, and New Hampshire) and specifically not allowed in thirty more (Gumbel, para. 9). Legal unions are available in seven states and the District of Columbia. On the national level the DOMA defines marriage as between one man and one woman, and therefore does not recognize any other marriage for federal and legal purposes (Cornell University, 2009). During his campaign, Obama said he planned to repeal the DOMA legislation and implement recognized civil unions (Cloud, para. 3); now it seems this has taken a back burner to other more pressing problems (Gumbel, para. 7). Historically, any marriage recognized as legal by the state has been recognized at the federal level for all legal purposes. For example, during the late 1800s and early 1900s there were laws enacted in certain states that disallowed interracial marriage. Later, as more states allowed interracial marriage, the federal government recognized them as marriages equal under the law. The federal government stayed out of the discussion because it was best for states to handle it locally (Rauch, para. 8). The Supreme Court commented in 1888 that marriage is “the foundation of family and of society, without which there would be neither civilization nor progress” (Musgrave, para. 5). While this remark is often quoted by defenders of traditional marriage, the actual case involved the Supreme Court determining the legality of a divorce which was granted in the Oregon territory in 1850 wherein a man abandoned his wife and children and later was granted a divorce without her knowledge. The children sued for half of the man’s claim in Oregon (Maynard v. Hill, 1888). Reading on a little from the famous quote, the Justice notes that marriage is not a contract per se but rather is a social relation that cannot be broken except for extreme circumstances. (The modern idea of no-fault divorce negates that opinion; marriage is not really an eternally-binding union of anyone, although states and the federal government have enacted laws which protect former spouses and the children which come from marriages.) So, while the Court offers an opinion it does not override the state (or territory in this case) in granting the divorce. Because DOMA does not recognize same sex marriage for any federal legal purpose, same sex couples are clearly not under the same guidelines that historical federalism has shown. In Article 4, the Constitution itself also makes it possible for a state to refuse to recognize any and all same sex marriages preformed legally outside its borders because of the public policy exception, which disagrees with the “full faith and credit” clause of the same article (News and Observer, para. 6). Typically states will recognize the actions and laws of other states, but they have the opportunity to not do so if they choose. In 1997 just after the DOMA legislation was originally passed, Kersch explored the full faith and credit issue in some depth. There are three norms which guide state decisions to recognize marriages across state lines: respect, good faith, and “hewing to the mainstream” (121). The first term, respect, translates to mean that states will respect each other’s laws; thus, a marriage performed legally in one state is honored by the others. The second term, good faith, allows states to ignore a marriage in one state if the couple went there to avoid the laws of their home state. The third term, hewing to the mainstream, simply means that states may refuse to recognize laws they see as contrary to public policy. An example might arise if one state passed a law that said ten-year-olds could marry; the other states wouldn’t have to honor those marriages. When these three interpretations of the Constitution are joined together with the DOMA legislation, they are a powerful basis for the legality of denying marriages which are legal in a small handful of states. Kersch also notes that the U.S. Supreme Court cannot review laws which are based upon states’ constitutions, an interesting protection of states’ rights which helps to keep the debate a federalist issue. Thus, all the lawsuits which are currently under consideration will stop with the state Supreme Courts; there won’t be any higher appeals. However, lawsuits can be brought to the U.S. Supreme Court that challenge the constitutionality of state laws (this is a separate issue from the many lawsuits which are going on right now in individual states). For instance, in 2003, the U.S. Supreme Court heard arguments on a Texas law which bans same sex sodomy. The Court eventually decided that same sex sodomy was a right and that it could not be regulated by the Texas constitution (Human Events, 2006). This decision has been referenced in other pending court cases that support same sex marriage rights as often happens when attorneys are arguing similar suits. Lawsuits which are brought to state Supreme Courts follow a tortuous path. In Iowa, for instance, a lawsuit representing three same sex couples was first filed in December of 2005 (Penn, 2009). The couples had been denied marriage licenses by the state. In August, 2007, a district court held that denying marriage licenses to same sex couples was unconstitutional, and in March, 2008, the Supreme Court received legal briefs signed by hundreds of Iowans in support of the couples. In April of 2009 the Iowa Supreme Court legalized same sex marriage, the third state to do so. As a result, same sex marriage is currently legal in Iowa, though there remains the question of whether other states would recognize marriages performed there. States that oppose legal same sex marriages performed in other states leverage DOMA as one supporting justification. The DOMA legislation has actually interfered with states’ ability to define marriage in their own way because it mandates a federal opinion on marriage (that it is between a man and woman) regarding rights to federally controlled benefits (Herald Sun, para. 10). Had this act not been passed, it might have been possible that one state’s decision to legalize same sex marriage would have to be honored by all 49 others, regardless of their local stand on the issue (Rausch, para. 4). So, in a way, DOMA has prevented states which would legalize same sex marriage from having that legality carry over in a meaningful way. The court systems finally test if laws are constitutional and there are many court cases still pending on the issue. There is also the side issue of the will of the people; decisions are made at state and federal levels without referendums which would uncover how the people feel about the issue. Allowing each state to do its own thing, so to speak, has been the case in matters addressing the legalities of marriage in general, and the federal government has avoided stepping in before the states have sorted out various issues on their own. In fact the attempt by the federal government to regulate same sex marriage in some way—through the DOMA legislation—has been uncharacteristic of how the federal government deals with marriage issues. The courts and legislatures of individual states are defining marriage on their own, and there are widely varying opinions on the issue. This simply means that there remains much discussion before the United States can figure out where it stands overall. The U.S. Supreme Court and the U.S. Congress must stay out of the way for now. Overall, an actual amendment to the United States Constitution or further acts such as DOMA that defined marriage either way would be overstepping the bounds of state rights. More states would need to agree one way or the other in order for a federal decision to be effective. At this point, it is inappropriate for the federal government to step in; a conservatively-controlled Congress or a liberally-controlled Congress which attempted to define marriage would be interfering with the basic tenets of the Constitution. References Cloud, John. “Obama’s Gay Problem.” Time 174.8 (2009): 23-24. Accessed 3 October 2009 from Academic Search Premier EBSCO host. Cornell University Law School. “US Code Title 1 Chapter 1 Section 7: Definition of ‘marriage’ and ‘spouse’. Cornell University website (January 5, 2009). Retrieved 3 October 2009 from http://www4.law.cornell.edu/uscode/1/7.html. Gumbel, Andrew. “A (Federal) Case for Marriage.” Advocate 1029 (2009): 54-56. Accessed 3 October 2009 from Academic Search Premier EBSCO host. “Defense of Marriage Act Should Be Repealed.” Herald Sun with Chapel Hill Herald 10 (January 10, 2009): C.8. Accessed 3 October 2009 from ProQuest Newsstand. “Can Government Define Marriage Any Way It Wishes?” Human Events 62.20 (2006): 3. Retrieved 9 October 2009 from Academic Search Premier Database. Kersch, Ken I. “Full Faith and Credit for Same-Sex Marriages?” Political Science Quarterly 112.1 (1997): 117-136. Accessed 9 October 2009 from Academic Search Premier. Maynard v. Hill, 125 U.S. 190 (1888). Full text available from http://supreme.justia.com/us/125/190/case.html. Musgrave, Marilyn. “The United States Needs a Federal Marriage Amendment.” Speech before Congress on July 18, 2006. Opposing Viewpoints: Homosexuality. Cindy Bily, ed. Greenhaven Press, 2009. “The States Don’t Agree, and Federal Law Won’t Make Them. A Patchwork of Laws Will Emerge.” News and Observer 19 (April 19, 2009): A.11. Accessed 3 October 2009 from ProQuest Newsstand. Penn, Denise. “Marriage Equality Case goes to Iowa State Supreme Court.” Lesbian News 34.6 (2009, January): 12. Accessed 9 October 2009 from Academic Search Premier Database. Rauch, Jonathan. “A Federal Marriage Amendment Would Undermine States’ Rights.” Opposing Viewpoints: Homosexuality. Auriana Ojeda, ed. San Diego: Greenhaven Press, 2004. Accessed 3 October 2009 from GALE Opposing Viewpoints database. Read More