Cathy Ruse is Senior Fellow for Legal Studies at Family Research Council. This article appeared in The Washington Times on January 14, 2014.
To the casual observer, the Supreme Court seems to have given its stamp of approval to same-sex marriage, and both Congress and the states have been trumped in the matter.
The casual observer would be wrong, though. Setting marriage law and policy remains the prerogative of each state. Despite the recent Supreme Court ruling in United States v. Windsor striking down a provision of the federal Defense of Marriage Act, states can pass laws or amend their constitutions to protect the historical understanding of marriage as the union of one man and one woman, or they can change it.
Congress, on the other hand, never had the authority to establish marriage rules. When Congress passed the Defense of Marriage Act in 1996, it was not attempting to ban same-sex marriage, but to answer what would soon be a pressing question: How should federal agents interpret the word "marriage" where it appears in federal law and regulation? DOMA said it should be interpreted to mean the union of one man and one woman.
The Supreme Court struck down this definition. The plaintiff before the court had been in a same-sex union that was recognized as a legal marriage under the law of her home state of New York. She argued that since her home state recognizes her same-sex marriage, the federal government should do so as well. Otherwise, state and federal law would treat her union differently, creating legal inconsistencies and hardships. The court agreed.
How should federal agents treat same-sex couples who are not legally married under the law of their home states? Thirty-three states do not issue marriage licenses to, or recognize out-of-state marriages between, same-sex couples. Should the federal government ignore states' authority in this area and treat these couples who are not legally married as married? The court's ruling in Windsor clearly does not require it, yet some federal agencies are doing just that.
In South Carolina, for example, legal marriage is only between one man and one woman. Same-sex couples who move to South Carolina cannot get married there, and if they were married in Massachusetts, they are no longer legally married in their new home state. When a federal agency such as the Internal Revenue Service begins treating that South Carolina couple as if they are married, the law of South Carolina is undermined, and the right of the people of South Carolina to pass marriage laws in their state is usurped.
The State Marriage Defense Act of 2014, sponsored by Rep. Randy Weber, Texas Republican, is a simple, common-sense response. It tells the federal government to follow the law of a person's legal residence or domicile to determine marital status for the purposes of implementing federal law. If state law recognizes two people as married, federal law will recognize them as married; if state law does not recognize them as married, federal law will not recognize them as married.
The State Marriage Defense Act would ensure that both state and federal law are "on the same page," thereby avoiding the inconsistencies and disparities that the Windsor court sought to remedy. The Supreme Court specifically condemned the Defense of Marriage Act for "creating two contradictory marriage regimes within the same State." The State Marriage Defense Act would ensure complementary marriage regimes within the same state.
The Supreme Court also condemned the Defense of Marriage Act for trying to, in the words of the lower appellate court, "put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws." By requiring the federal government to follow state law, the State Marriage Defense Act ensures that the federal government does not influence the decisions a state makes with regard to its marriage law and policy. In Windsor, the court reaffirmed the "historic and essential authority" of the states to set rules for marriage. The State Marriage Defense Act protects that authority.
United States v. Windsor removed the uniform federal definition of the word "marriage," which appears in more than 1,000 federal laws and regulations, leaving federal agents with a choice: to respect state authority in this area and defer to a state's marriage law in applying federal law to its legal residents, or to ignore state law and put a heavy federal "thumb" on the scale in favor of same-sex marriage - even in the majority of states that have laws to the contrary.
In Windsor, the court was persuaded by the argument of a resident of New York that the federal government should not apply federal law in a way that was inconsistent with the marriage law of New York. Congress should protect the "historic and essential authority" of Texas and the 32 other states that have not adopted same-sex marriage by requiring federal agencies to respect their marriage laws, too.
As the Supreme Court stated in Windsor, "the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations." So should it here. Congress should pass the State Marriage Defense Act of 2014.