Room for Disagreement on Gay Marriage

Understanding the White House's decision to stop defending the Defense of Marriage Act

President Barack Obama has been denounced by Republicans for asserting federal power at the expense of state sovereignty. But last week, he was denounced by Republicans for … not asserting federal power at the expense of state sovereignty.

It happened after the Justice Department announced it would not litigate to uphold the Defense of Marriage Act (DOMA). The president thinks one section of the law is unconstitutional—a section that prohibits the federal government from recognizing same-sex marriages.

In practice, that means married homosexuals lack all sorts of privileges extended to married heterosexuals. They may not file their federal taxes jointly, claim various tax breaks, collect Social Security survivor benefits if their partners die, or take advantage of spousal benefits granted to military personnel and veterans.

Ozzie and Harry may be lawfully wedded in Iowa, but to the federal government they are the legal equivalent of Colin Powell and Charlie Sheen: holding nothing in common.

Obama would like to change that. If DOMA were to be struck down, the federal government would no longer insist that some marriages transacted under state laws are valid and some are not. It would tell states: You decide who can get married, and we'll abide by your judgment.

You want to let gays walk down the aisle? Knock yourself out. You want to deny them the joys of matrimony? Be our guest.

Such deference has always been the norm. There's a range of matrimonial policies between Hartford and Honolulu. Some states allow 14-year-olds to wed with parental and judicial consent, and others don't allow marriage until age 17 no matter what. Some states let first cousins get married, and some don't. Some states used to forbid a black person from marrying a white person.

The federal government has never gotten mixed up in deciding which states are right and which are wrong. It has always had a simple rule: Show us the marriage certificate.

Until same-sex unions came along, that is. DOMA passed in 1996, when it looked as if Hawaii would let gay couples marry. If opponents of gay marriage couldn't prevent a state from enacting it, they figured, they could impede and stigmatize it by singling out same-sex partners for inferior treatment by U.S. government agencies.

For anyone attached to our constitutional tradition and federalist framework, this policy is a mistake for two reasons: It thrusts the national government into a matter where it has no business, and it enforces an irksome uniformity on states with diverse mores and cultures.

DOMA is a double standard writ large. The feds respect the choices made by the people of Mississippi and Michigan, but not those embraced by citizens in Vermont or Connecticut.

But the law is not entirely hostile to federalism. It expressly upholds it, in fact, when it says no state has to recognize a same-sex marriage from another state.

That's as it should be. Since Texas has the power to prevent its citizens from entering into same-sex marriages within its borders, it should not have to respect the same-sex marriages of residents who jet off to say their vows on Martha's Vineyard.

If Texas had to recognize gay unions transacted elsewhere, its law against same-sex marriage would be a grand irrelevancy. Federalism says each state gets to decide for itself, without being trumped by laws enacted elsewhere.

Even if DOMA were to be struck down or repealed, though, this practice would endure. In his 2006 book, Same Sex, Different States, Northwestern University law professor Andrew Koppelman writes, "There is not a single judicial decision that holds that (the Constitution) requires states to recognize marriages that violate their own public policies concerning who may marry."

But if Texas is entitled to decide who among its people gets all the benefits of marriage, New Hampshire should have the same right. Right now, it doesn't. Under DOMA, the federal government respects state authority to do only what it approves, which is a pitiful kind of sovereignty.

Getting rid of DOMA would be a recognition that America has room for more than one policy on same-sex marriage. The bad news is the people of the 50 states may never agree on the issue. The good news is we don't have to.

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