Judge Rules Colorado's Gay Marriage Ban Unconstitutional [16th Judge To Strike Down!]

Guardian (UK) ^ | July 9, 2014

[Amendment10]

Regarding DOMA Section 3, with one reservation I actually agree with the Supremes that the states have never delegated to the feds, expressly via the Constitution, the specific power to define what marriage is. After all, the Founding States had made the 10th Amendment to clarify that the Constitution’s silence about things like marriage means that such issues are 10th Amendment-protected intrastate power issues.

My one reservation concerning Section 3 is the following. When the Supreme Court decided against the Mormon practice of polygamy when they decided Reynolds v. United States, 1878, since the 10th Amendment did not apply because Utah was still a territory, not a state, the Court applied English common law which which evidently defined marriage as a one man, one woman union. Given that common law is referenced in the Constitution's 7th Amendment, I think that the federal government should still be bound by that precedent today with respect to federal marriage policy.

Also, note that DOMA Section 2 is reasonably based on Congress's Full Faith and Credit power (Section 1 of Article IV), power delegated by the states to the feds to regulate the effect of one state’s records in another.