As I’ve mentioned in the past, I’ve been following several court cases dealing with same-sex marriage over the last couple years. Aside from the Proposition 8 case from California, there are several DOMA (Defense of Marriage Act) challenges making their way through the courts.
At least one of them will likely be taken up by the Supreme Court in its next session. (The session starts in November and runs through June.) My prediction is that this time next year DOMA will be dead, declared unconstitutional by the Supreme Court.
There are several interesting aspects of these cases, primarily centering around equal treatment under the law and level of scrutiny due gay and lesbian American citizens. But there is another aspect that should be of interest to a broader range people. That topic is federalism.
For the entire history of the United States, domestic law has been the domain of the states, including regulating what constitutes a legal marriage and who can legally marry. The federal government has always accepted state definitions, allowing for differences from state to state. It didn’t matter that there was a lack of uniformity, if a marriage was legal in the state, it was legal for federal purposes.
In the case of DOMA, the federal government took the unprecedented action of overriding state authority. Under DOMA, a same-sex couple can be legally married in the eyes of their state, but they become unmarried in the eyes of the federal government. The two spouses are considered legal strangers. Aside from the messy and precarious legal situations this engenders for individual couples, this constitutes a federal challenge to state sovereignty.
This is important to our nation as a whole, because if the US Congress is allowed to intrude in this area that is normally off limits, there is nothing stopping them from intruding elsewhere in the future. So putting aside equality considerations, it would be dangerous for the Supreme Court to allow DOMA to stand for this reason alone.
What is ironic and confounding is that maintaining state sovereignty is normally an issue of great importance to conservatives. Yet it’s mostly conservatives who are throwing away one of their key values in favor of their desire to impose their version of morality on the nation.
Three states (New York, Vermont, and Connecticut) have filed an amicus brief in the Windsor case that very nicely lays out the federalism concern. It’s excellent reading for anyone even the least interested in the topic, and quite educational. I highly recommend giving it a look.
If you’re interested in following the court cases and other equality issues, I recommend bookmarking prop8trialtracker.com. They post frequent updates, and it’s convenient to get all the important information in one spot on the web.