Peter Sprigg is Senior Fellow for Policy Studies, and Cathy Ruse is Senior Fellow, Legal Affairs at Family Research Council. This article appeared in The Hill on October 24, 2013.
A handful of states have redefined marriage to include same-sex unions, and the Supreme Court has now said that the federal government must respect the "historic and essential authority" of states "to define the marital relation" by recognizing those "marriages."
However, that same "historic and essential authority" rests with the states themselves, the vast majority of which continue to define marriage as the union of one man and one woman. Congress can and should pass a simple provision to ensure that the federal government respects the law in these states, too.
In 1996, Congress responded to the first efforts by state judges to change the definition of marriage, passing (with overwhelming bipartisan support) the federal Defense of Marriage Act (DOMA). One part of DOMA (Section 3) made explicit what had always been self-evident - that for all purposes under federal law, "marriage" is defined as the union of one man and one woman.
The Supreme Court changed that in June. The plaintiff in United States v. Windsor had legally married a same-sex partner in Canada. New York (where the couple lived) recognized them as married, and Windsor's attorneys argued that the federal government should do so also. The Supreme Court agreed, condemning "DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage."
The Windsor majority said that the federal government should defer to "state-law policy decisions with respect to domestic relations," but that raises a question - policy decisions of what state? Is it the state where the marriage took place (the "state of celebration"), or where the couple now have their legal residence (the "state of domicile")?
DOMA's critics argued that the federal marriage definition created various incongruous disparities and inefficiencies in the law. For example, same-sex couples in a state that recognizes their marriage would be permitted to file a joint tax return with the state, but would then be required to file separate returns with the federal government.
However, applying the Court's ruling to same-sex couples who live in states that do not recognize same-sex unions as "marriages" would create new inconsistencies of exactly the same type that the lawsuit ostensibly sought to remedy.
Take the tax return issue. Suppose that a same-sex couple living in Maryland had "married" there, but later decide to relocate to Texas. The Texas constitution permits only the recognition of unions between a man and a woman as "marriage."
Will the federal government permit the couple to file a joint federal tax return - even though Texas, their state of legal residence, requires them to file separately? In such a case, just as much as before Windsor, the federal government would be refusing to defer to a state's definition of marriage.
What if the couple never resided in Maryland at all, but merely traveled there from Texas to get married and then returned home to Texas to live? If the federal government recognizes such a "marriage," it would be affirming the couple's deliberate evasion of their own state's law.
Unless and until the U.S. Constitution is amended to reinstate the natural definition of marriage as the union of a man and a woman nationwide, Windsor clearly requires federal recognition of a same-sex union that is recognized as a "marriage" by the state where the couple lives. However, the status of same-sex couples who have obtained a civil marriage somewhere, but reside in a state that does not recognize them as married, was left ambiguous.
Advocates of redefining marriage have ignored this ambiguity and rushed to the broadest possible interpretation, insisting that the federal government should extend recognition and benefits even to same-sex couples who are not married according to the law of their home state. The Obama administration is leading the charge. The Office of Personnel Management (OPM) announced August 2 that retirement benefits for federal employees would be extended to same-sex spouses "regardless of the employees' or annuitants' states of residency."
Not only is this interpretation not required by the Windsor ruling, but it conflicts with parts of it. For example, the Court specifically condemned DOMA for "creating two contradictory marriage regimes within the same State." The Obama administration's benefits policy creates just that. The Court condemned DOMA for trying to "put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws." The Obama administration's actions do just that.
The Obama administration is going beyond the dictates of Windsor and putting a heavy federal thumb on the scale in favor of same-sex marriage in the vast majority of states with laws to the contrary. Congress should protect the "historic and essential authority" of these states by requiring federal agencies to respect their marriage laws, too.