“Disambiguiating,” as wikipedia fittingly obscurely puts it,
My point in this post is a defense of the notion that the Supreme Court’s ruling in US v. Windsor that the “Defense of Marriage Act” is unconstitutional. (The majority’s reasoning in that case—that Section 3 of DOMA amounted to “a deprivation of the liberty of the person protected by the Fifth Amendment.”—is something I will return to below. For now, I will focus simply on whether the US government “ought to be in the business of” differentiating between marriages.)
Well, in a nutshell, my focus should be enough to elucidate the syllogism underlying my argument:
Major premise: The US Federal Government has not historically differentiated between different marriages.
Minor premise: A government should not a make differentiation that has not been made traditionally.
Conclusion: The US Federal Government should make a differentiation between different marriages.
Note that, at least to my (and wikipedia’s) knowledge, the Federal Government never enacted an anti-miscegenation law, the nearest analogy in my opinion. Thus, while the Federal Government has distinguished (and still distinguishes) between the married, unmarried, and widowed, the fact is that federal law has traditionally adopted a pretty fittingly (Gertrude) Steinian position vis-a-vis marriage:
Thus, the Supreme Court struck a (in my opinion, well overdue, albeit for additional reasons) decisive blow in favor of conservativism in its ruling in Windsor. Simply put, laws should in general be few and, more importantly, avoid whenever possible making new distinctions between people and/or actions. (There are a couple of arguments about why I believe this, including the undesirability of providing overly powered incentives. For example, in this case, why should society attempt to provide a differential incentive to a man or woman who thinks about marriage to marry someone of the opposite gender? More subtly, why should the federal government tell states that they need not think about providing such differential incentives? Finally, why should the government provide differential incentives to “get married,” as opposed to more directly focusing on providing incentives for “being a responsible adult and taking care of your children?” But that is for another post.)
Before concluding, I’ll comment briefly on what I think—as a certified non-lawyer—the “best” reasoning for overturning the statute. The full faith and credit clause (Article IV, Section 1 of the United States Constitution, henceforth FFCC) of the Constitution is, in my opinion, quite clear. (As is, to be fair, the clause’s essential reiteration in federal law.) In a nutshell, the clause states that each State must recognize as legally binding the
“public acts, records, and judicial proceedings of every other state.”
So, the question here is one of degree. Fast-forwarding, it is reasonable and true that the FFCC does not say that each State must recognize/enforce the laws of every other state. Why? Well, because it doesn’t, and because it would be ridiculous if it did. Accordingly, if one state allows its clerks to issue marriage licenses to same-sex couples, then this does not mean that any other state need issue such marriage licenses. We see differences like this everywhere in family law: the details of acceptable grounds for divorce, alimony, community property, etc. all differ in various states.
The question here, then, is actually not about the so-called “public policy exemption” that some believe is implicit in the original text of the Constitution. I’ll agree that such an exemption must exist: but a marriage license is not a gun license. (Insert joke here.) In particular, while State A does not need to recognize State B’s decision to allow you to possess a particular gun in State B, State A does not possess the power (at least under the Constitution) to assert that the gun is not yours. To me, at least, that’s the point, and it’s a real one: I’m strongly for marriage equality (though, again, maybe for weird reasons…), but as strongly as I believe that DOMA violates the FFCC, I don’t think that the FFCC (per se) guarantees all married couples “equal rights” with respect to certain “marital actions” such as adoption (because the state has a compelling public interest in regulating adoption, for example).
I admit this because, again, I have a stronger (and in some sense “Constitution-free”) argument for why states should not differentiate between marriages based on the genders of the couple in question. Sometimes you need a hammer, and sometimes you need a screwdriver: this more specific problem needs a screwdriver, and the FFCC is a hammer.
With that, I leave you with this.