Skip to comments.Congress should protect states' right to define marriage
Posted on 01/15/2014 8:26:59 AM PST by xzins
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.
And, given the above ruling already made by Scotus, Congress should make this new law non-reviewable by the Federal Court system.
The concept of “judicial review” does not appear in the Constitution and represents one of the earliest instances of judicial activism—The Supreme Court essentially inventing a role for itself out of thin air.
It would be fascinating to watch the fall-out from a modern-day leader rejecting a SC ruling on that basis.
In no way am I for same sex marriage, but I think the States should decide that and tell the Judges and U. S. Government to stay out of it.
Not going to happen. The three heads of the fedgov monster, along with all of the bootlickers at the state level, are falling over themselves to milk the gay lobby, and exploit it for all the money and control they can wring out of it.
Protected class+politcal correctness+affirmative action+K street=$$$$$$!
Obummer and the Supreme Court=
A Marriage Made in Hell
I agree 100%,
Even if we cant beat the libs in the courts(more and more so with Kennedy) , conservatives could make this into a illegitimate imposition rule of court’s tyranny.
That those marriages are not valid because the courts mandated them against the states voters will. ‘Sodomy celebration’ licenses mandated by Democrat appointees.
Unfortunately I see House Republicans will probably duck the whole issue.
Not likely when so many are out there falling over themselves praising SCOTUS for nixing a law they voted for twenty years ago.
The CONSTITUTION protects it.....The Congress and Clown and Courts notwithstanding.
Except California, because we can't allow the people to amend their own Constitution in manners which we don't like. [/sarc]
And seriously, if the Congress can't firmly stand against something popularly unpopular like ObamaCare or the NSA-spying, how/why would we expect them to make a less-popular moral stand?
All Congress is willing to protect is their cash influx.
It’s going to take more than this to stop gay marriage.
The feds have military marriages, millions of employee marriages, and immigration marriages to deal with, already 17 states worth of Americans can call themselves married as gays, and we live in a fluid society.
It is going to take something more powerful than this to defeat gay marriage.
As the media works on the checkerboard aspects, and the plain unworkability of this, as people move and are transferred from one state to another, then the left will roll over us within a few short years unless we come up with more.
If not, their hypocrisy is showing.
Will the courts allow them to do that?
Marriage is an institution defined by God, not man. If we have separation of Church and State, because people who are hostile to godly marriage are now in control of too many government decisions, it is time to have separation of Marriage and State.
The State attempts to force us to recognize its power. One way is to presume the power to define who is married and who is not. We cede this power in part because we allow the State to tax incomes and estates. To administer such taxing power, the State must define who it considers to be “married” and who is not. Just as when it defines a corporation to be a “person”, as silly as this would be to God, the State does not hesitate to define anyone it pleases as being “married”, totally apart from how God would define them. Sadly, even ministers allow the State’s definition of marriage to be the controlling definition.
It is time to return marriage to the private sphere. Then government’s only job is to respect the decisions of its citizens.
DOMA didn’t deal with states. It dealt with how the Federal Government would define the word “marriage” in federal law. So, it isn’t hypocritical to support both DOMA and states rights to pass their own marriage law.