States should retain power to define marriage

Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council. This article appeared in The Salt Lake Tribune on February 6, 2014.

The last few weeks have been a roller coaster for marriage law in Utah. On Dec. 13, U.S. District Court Judge Clark Waddoups vindicated years of slippery slope arguments by opponents of marriage redefinition by declaring the state's law criminalizing polygamous cohabitation to be unconstitutional.

One week later, on Dec. 20, another U.S. District Court judge, Robert J. Shelby, declared that Utah's state constitutional amendment defining marriage as the union of a man and a woman violates the U.S. Constitution. Officials in Utah began issuing marriage licenses to same-sex couples immediately.

That came to a halt on Jan. 6, when the U.S. Supreme Court granted a stay requested by the state. Gov. Gary Herbert's chief of staff then notified state agencies that they should once again follow state law and not extend marital recognition to same-sex couples. However, on Jan. 10, U.S. Attorney General Eric Holder announced that the federal government will do the opposite - recognizing same-sex couples in Utah who obtained marriage licenses and conducted a ceremony between Dec. 20 and Jan. 6 as "married."

Holder's announcement illustrates the need for the State Marriage Defense Act (H.R. 3829), introduced on Jan. 9 by U.S. Rep. Randy Weber, R-Texas. It is a response to the Supreme Court's ruling in June 2013 striking down part of the 1996 Defense of Marriage Act (DOMA). The Court deemed it unconstitutional for the federal government to define marriage as the union of one man and one woman (thus denying federal recognition to any same-sex "marriages"), asserting that the federal government is obliged to defer to the states in defining marriage.

Left unanswered by the Court's decision in U.S. v. Windsor, however, was the question of which state deserves such deference when a same-sex couple has entered into what is considered a "marriage" by the state where it occurred, but is not recognized as a marriage by the state where they actually live. Those who favor redefining marriage to include homosexual couples favor federal recognition of all such unions.

That approach, however, runs up against a number of principles articulated by the Supreme Court in its DOMA decision. One example of the hardships created by DOMA, for instance, was that some couples might file joint tax returns in the state where they live (say, Massachusetts), but be forced to file separate federal returns.

However, if the federal government recognizes a marriage contracted in Massachusetts by a couple who now live in, say, Texas, the same situation would prevail in reverse, with joint returns allowed by the federal government but separate ones required by Texas. The Supreme Court condemned DOMA for "creating two contradictory marriage regimes in the same state," but the policy favored by the Obama administration suffers from the exact same weakness.

That problem is solved by the State Marriage Defense Act, which provides that a marriage will not be recognized by the federal government if it is not recognized by the state in which a person lives. Every American's marital status in the eyes of the federal government would be the same as in the eyes of the state where he or she lives. This is consistent with both the Windsor ruling and what it called the States' "historic and essential authority to define the marital relation."

It would also mitigate the confusion and chaos created in Utah by one federal judge and Attorney General Holder.