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  • Marriage and Faux Federalism

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    George Will opens his recent column criticizing the Defense of Marriage Act (DOMA) on federalism grounds by quoting from a 1948 Supreme Court case: “[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.”

    What he doesn’t point out is that the citation for that argument is a 1930 decision written by that arch living-constitutionalist Justice Oliver Wendell Holmes, who asserts that “the domestic relations of husband and wife and parent and child were matters reserved to the state.” The Court’s understanding of regulation and control presumed a definition. Therein lies the rub.

    DOMA, which is being challenged before the Supreme Court next week, was an attempt to preserve in place the ability of the federal government and the states to address marriage appropriate to their respective spheres of authority. The very definition (as even Justice Holmes assumes) had never been questioned, though the regulation and control (the cases cited above were divorce disputes) varied state to state.

    What Congress did in 1996 was to preserve this relationship consistent with federalism. It did not impose a national definition (which would require, as many at the time and since have called for, a constitutional amendment) but instead defined marriage for purposes of provisions of other federal law only.

    There’s no federalism controversy here; federal law defines terms for federal law all the time (it is impossible to see how it could not do so) and to do so is not to assert a new federal power. To the extent there might be constitutional problems, it would be a challenge to the underlying laws themselves or to the definition violating some other provision (e.g., equal protection claims in the Due Process clause). But it’s not a federalism issue.

    Indeed, the second section of DOMA makes clear that federalism is the law’s chief purpose: to prevent one state’s definition of marriage from being forced on another. The definition for federal purposes, which only applies to “any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States” is necessary to prevent the federal government through its regular actions (taxation, benefits, etc.) from forcing a new definition of the institution of marriage on the states.

    Striking down DOMA would mean that states that maintain the traditional definition of marriage would be required to subsidize federal costs in states that redefine marriage. That makes no sense. From the states’ point of view, DOMA is the equivalent of the Hyde Amendment, which prevented federal funds to pay for abortions.

    On this one I am afraid Will gets his history and constitutional arguments wrong. Ed Whelan has made a strong argument refuting the federalism amicus brief Will cites throughout his column. Those interested in this debate would do well to read it and more recent posts.

    I support and encourage Will’s concerns for federalism in the face of the growing behemoth of the national government. But if we want to prevent the federal government from redefining marriage for all the states (denying that marriage is about domestic relations of husband and wife and parent and child) and launching a massive expansion of the federal government (concerning the regulation and control of marital and family relationships), then we should strenuously defend DOMA and uphold the ability of states to define marriage in their state constitutions.

    That’s not just federalism; it’s constitutional self-government.

    CORRECTION: An earlier version of this blog linked to the incorrect Ed Whelan article. It has been corrected.

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