Attorney General Eric Holder announced last week a new Department of Justice policy regarding marriage: “[E]ven in states where same-sex marriages are not recognized, the federal government will not use state views as a basis to object to someone in a same-sex marriage invoking this right.”
As justification for this decision, Holder cited the Supreme Court’s ruling in Windsor on the federal Defense of Marriage Act (DOMA): “Tonight, I am proud to announce that the Justice Department is taking additional steps…to give real meaning to the Windsor decision.” But his policy demonstrates a misunderstanding of the logic of the Windsor decision.
Last summer, when the Supreme Court invalidated parts of DOMA, the Court reaffirmed that “the significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for ‘when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.’” The states remain free—and should continue to remain free—to define marriage as the union of one man and one woman.
The Supreme Court ruled against portions of DOMA because, the Court claimed, the federal law “put a thumb on the scales and influence[d] a state’s decision as to how to shape its own marriage laws.” It decried that DOMA created “two contradictory marriage regimes within the same state.” Ironically, it is Holder’s new policy that threatens to create two contradictory regimes by redefining marriage for federal purposes even in states that retain laws that reflect the truth about marriage as the union of a man and woman.
Holder’s actions highlight the need for the federal government to respect state marriage laws. Last month, legislation was introduced in the House of Representatives that does just that.
The State Marriage Defense Act of 2014 (H.R. 3829) requires the federal government to respect state laws on marriage. It requires the federal government to look to the laws of the state where citizens reside to determine the definition of marriage. It states that the term marriage shall “not include any relationship which that State, territory, or possession does not recognize as a marriage, and the term ‘spouse’ shall not include an individual who is a party to a relationship that is not recognized as a marriage by that State, territory, or possession.”
Holder and other federal agencies have overreached, as Notre Dame law professor Gerard V. Bradley explains:
These agencies have no inherent legal authority to define marriage. Neither does the President or his Attorney General, so long as Congress has exercised its paramount authority to do so. The State Marriage Defense Act will thus restore proper legal order to the scene and correct the administration’s unlawful practice.
Redefining marriage would entail high social costs. Thus all Americans should insist that our laws embody the truth about marriage. And the federal government should respect it when state laws do so.