Gay Marriage

Defending Marriage, Fighting Democracy

The federal government's refusal to recognize same-sex unions intrudes on state autonomy.


In two cases last week, lawyers urged the Supreme Court to respect the democratic process by upholding bans on legal recognition of gay marriages. But only one of those bans can plausibly be portrayed as representing the will of the people.

Proposition 8, the 2008 ballot initiative that overturned a California Supreme Court decision legalizing gay marriage, reflected popular opposition to what was perceived as arrogant meddling by unelected judges. Although the federal Defense of Marriage Act (DOMA) was driven by a similar populist impulse, in practice it frustrates the will of the people in states where voters or their elected representatives decide to treat gay and straight couples equally.

Whether you think this issue should be decided by popular vote will depend on whether you think legal recognition of gay marriage is required by the constitutional principle of equal protection, a claim raised in both cases the Supreme Court heard last week. But either way, DOMA cannot stand. As the law's author noted when he repudiated it in 2009, DOMA "has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions."

When Congress passed DOMA in 1996, Paul Clement told the Supreme Court last week, it was "trying to promote democratic self-governance." Clement, a former solicitor general representing DOMA's supporters in the House of Representatives, said Congress worried that a Hawaiian Supreme Court decision requiring the state to recognize same-sex unions (a ruling that was later overturned by a constitutional amendment) could ultimately "change the definition of marriage" throughout the country.

How so? Gay couples might flock to Hawaii, get married there, and then insist that their home states recognize those marriages, citing Article IV, Section 1 of the U.S. Constitution, which says "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

States already could resist such demands based on the "public policy exception" to this clause, which says a state is not obligated to respect laws that contradict its own. Adding suspenders to this belt, Section 2 of DOMA decreed that no state "shall be required to give effect to any public act, record, or judicial proceeding of any other State…respecting a relationship between persons of the same sex that is treated as a marriage."

Section 3 of DOMA, the part Clement was defending, went further, barring the federal government from recognizing state-licensed marriages between people of the same sex. As a result of Section 3, legally married gay couples are not counted as such under 1,100 or so provisions of federal law dealing with matter such as taxes, immigration, Social Security benefits, and health care.

Clement portrayed this refusal to acknowledge state-licensed marriages as "one way to stay out of the debate" and "let the democratic process deal with this." Yet with DOMA, Congress very clearly took sides in the gay marriage debate, expressing what a House report called its "collective moral judgment" and "moral disapproval of homosexuality."

Far from protecting state autonomy, Section 3 of DOMA intrudes on it. "The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage," Justice Anthony Kennedy told Clement. "When it has 1,100 laws, which in our society means that the federal government is intertwined with the citizen's day-to-day life, you are at real risk of running in conflict with [the states' traditional authority] to regulate marriage, divorce, [and] custody."

Under DOMA, the federal government ignores gay marriages not only in states where they are recognized as a result of judicial decisions, such as Iowa and Massachusetts, but also in states where they are recognized as a result of legislative action, such as New York and New Hampshire, or ballot initiative, such as Maryland and Washington. That result is hardly consistent with Clement's call to "let the democratic process deal with this."

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  1. Morning

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  2. Fortunately or unfortunately, in a representative republic, DOMA can also regarded as being the will of the people. It’s unfortunate that we generally elect the worst of us to represent us.

    1. They claim to represent us, but in reality they represent whatever groups donate the most money to their political campaigns.

      1. Not MY Congresscritter. It’s only other people’s Congresscritters that are like that.

        /dumb voter

        1. I have heard that argument from members of my own family sadly enough. I live in the district of Vern Buchannan who is one of THE most corrupt in the House (which is saying something). But, despite his RINO voting record he is well respected by some of the more deluded voters in my district, this includes members of my own family I am ashamed to say.

          1. Move to another district. The FL districts are so gerrymandered it shouldn’t take more than a few hundred feet until you’re in another congressional district.

        2. What kind of idiot thinks there’s something stupid about this?

          What if my congresscritter is named Justin Amash or Rand Paul or Tom Massie?

          And what if yours is named Schumer or Pelosi or Reid?

          It is possible to vote for, and see elected, someone who’s not bad.

      2. I’m not particularly sure that came into play here. It would strike me likely that there would likely be more donor money in supporting same sex marriage than opposing. The supporters are highly incented to change the law. Opponents have only their particular moral predisposition.

        1. Do libertarians favor the existence of laws mandating licensing of barbers, or taxi drivers, or anyone else?

          How about preferential tax benefits for licensed people, whether for barbering, or taxi drivers, or … marriage?

          1. Why is tax benefits the place everyone goes to?

            How about determining who has control over your dead body (assuming you die intestate)? Spouse (widow) gets priority, then (adult) children/grandchildren, then parents. Parents can exclude an unmarried partner from a funeral, but not a married one.

            Of course, people who leave a will should be able to designate what happens to their body in the will and override everyone else. The fact that their will can be overturned by parents, widows or children is appalling.

            Sure, people have sued because of federal tax law – but that’s mostly because there are more test cases, not because they’re the most important.

    2. I don’t elect them, Fisty.

      1. Your lack of a vote is a vote for the other guy.

  3. OK wow, that just makes a lot of sense dude. WOw.

    1. Annonbot, how do you think this issue will impact the long term prospects for Federalism?

      1. The long term prospects of federalism were killed with Wickard.

        I want to see DOMA overturned, but a little honest would be nice. It’s the first step in de facto nationwide SSM.

        1. VG Zaytsev,

          In theory at least, Federalism could be revived if we got some judges who actually read and followed the U.S. Constitution. Do I think this is likely to happen in my lifetime? No, I don’t. But to abandon the standard of Federalism is to cede much of the argument.

          Unless, of course, you want to graduate to ancapism, which is a whole different standard altogether.

  4. Most of DOMA should be struck down. Marriage should not be granted by the government at any level.

    But, I’m hesitant to force states that have overwhelming opposition to gay marriage to recognize it, from making them issue marriage licenses to gay couples to respecting licenses from other states.

    Still, forcing them may make some of them consider just abandoning government sponsored marriage altogether. Now THAT would be a victory.

    1. “Still, forcing them may make some of them consider just abandoning government sponsored marriage altogether. Now THAT would be a victory.”

      Yes, it would, the SoCons might find their way to ACTUAL conservativism and to abandoning Bill O’Reilly-ism.

      1. Yes, it would, the SoCons might find their way to ACTUAL conservativism and to abandoning Bill O’Reilly-ism.

        If you can’t get Libertarians to abandon government sponsoring of marriage, you can’t expect anyone else to do so. A quick perusal of this site would leave me to believe that Libertarians favor the government recognition of personal relationships as long as it increases “fairness” and the “Liberty” to access government benefits.

        1. Not everyone at Reason is an AnCap, this is true, but I do think that anyone who is even someone in favor of even “small government” could be reasoned with and made to see the disadvantages of having a government “Ministry of Love”.

        2. From my reading, most people seem to advocate getting rid of government sponsored marriage.

        3. I would say that most libertarians here would like to see government out of the marriage business, but realize that isn’t going to happen, and see no reason to deny homosexual marriages the same recognition under the law as heterosexual marriages.

          1. Then why deny such licensing to anyone, or any three, or any five?

            Remember the Delany sisters, the centenarians who wrote the book “Having Our Say.” What moral and legal argument do you use to deny them equal treatment under the law?

            So now libertarians are suddenly going to start getting practical and advocate for laws that they would otherwise be opposed to. Is that why many seem to be against immigration laws? Or don’t we realize that most of those people who immigrate into this country eventually become Democrats, who hasten this country’s flight from individual freedom?

            The more we compromise with the Devil, the more we become like him.

      2. Yes, it would, the SoCons might find their way to ACTUAL conservativism and to abandoning Bill O’Reilly-ism.

        The hard core SoCons are just progressives that never lost Christ – they’ll never abandon the idea of government intervention.

        And Bill O has been for civil unions for a long while (at least he claims so now).

  5. I would love to see this law (or any other for that matter) struck down on the basis of the Ninth and Tenth Amendments. A great precedent.

    1. Dream on.

      If it’s struck down it will be on equal protection grounds – which will expand government power.

      Don’t know why some libertarians thinks that’s an advancement of liberty in any way.

      1. Yeah, but it’s a good dream. Imagine Thomas writing a strong and far reaching opinion that sets new precedent overturning Wickard and Raich and every other Court case we hate, and the four leftists going along gleefully because “gay marriage!”

        Tread lightly on my dreams VG.

      2. You don’t understand.

        True libertarians support the use of government force when it comes to redefining words. In fact, there is nothing more libertarian than forcing your definition of a word onto people who might be offended. Especially if they are Christians.

        1. I’m pretty sure it was Christians who forced the definition of marriage as “one man and one woman” on everybody else. They even actively persecuted polygamists in order to enforce it.

        2. This issue really brings out the inner proglodyte in a lot of libertarians.

          Only the intention for fairness matter and pointing out foreseeable consequences is just mean.

    2. I know it. If DOMA gets struck down on 10A grounds, then Prop 8 must stand for the same reason.

      1. Big deal. Have another referendum.

        1. That’s right. Keep having referendums until the one you like is passed. Then no more referendums because the people have spoken. Funny how some libertarians turn into progressive liberals when it comes to redefining marriage.

          1. Because it is a cut and dry line of what the definition of a Liberal and a Libertarian is.

  6. in practice it frustrates the will of the people

    Ah, but the will of God trumps the will of the people.

    /undefined terms

  7. It’s as if we created this fancy document to make sure the will of the majority didn’t trample the rights (or privileges) of the minority. Forgot what that is called.

  8. Sarcasmic,
    I’m very sorry that you’re upset that your mindless bigotry will no longer be enshrined in the law. And I’m also amused to see a self-proclaimed liberatarian who doesn’t understand that no one, not even a Christian, has a right to NOT be offended (I take it you would grasp this concept if it was discussed in the context of campus speech codes).

    1. I know it. I mean, the only possible reason to oppose the redefining of marriage is raw hatred. There can be on other reason. None at all. That is the only explanation.
      At least I have a chance for redemption. I can prove my innocence by supporting the redefining of marriage. Only by doing this can I prove my innocence. Until then I am a hater. Because raw emotion is the only possible explanation.


      1. There is a real injury to people happening under current law. Words can’t be injured.

        1. I know it. All those same sex couples in prison for the crime of illegal marriage. So sad. I hope this gets all sorted out so they can be released.

          1. Being treated unequally under the law is a constitutionally recognized injury.

            1. True,

              I’m being injured by the government denying me food stamps, just because of my income.

              1. Yeah the constitution doesn’t, and obviously shouldn’t, recognize not being poor as a suspect class.

            2. How is anyone being treated unequally? Neither heterosexuals nor homosexuals can marry a member of the same gender.

              1. Wow I have never heard that argument before. Tell me more.

          2. The don’t-change-the-definition-of marriage argument is a pathetic tautology. Do you know what the definition of marriage used to be in this country? The union of a man and a woman OF THE SAME RACE. Looking bad, you must feel a great deal of anger that Loving v. Virginia changed the definition of marriage a couple decades back. I’m so sorry for assuming your opposition to gay marriage is based in unthinking bigotry but it’s been my experience that when you peel back all the vague rhetoric about tradition and definitions, opposition to gay marriage is almost always based on the idea that gay sex is gross and if we legalize gays getting married then the gays will think that we don’t think they’re gross anymore. I defy you to provide some kind of plausible mechanism for how a gay couple getting married violates the rights of anyone else. And, just to remind you again, there is no right to not be offended by someone else’s actions (even if it offends the religious sensibilities of a majority of the population).

            1. For that matter, how does a woman marrying her father violate the rights of anyone else? Should laws forbidding this be struck down as well? If not, why not. I really would like to hear what you have to say.

              1. It could be violating the rights of the woman if her father used his parental authority to indoctrinate his daughter from an early age in the belief that she had to have a sexual relationship with him at some point in her life. Other than that, if two competent adults each consent to a romantic or sexual relationship, aside from my own personal feelings of distaste, it shouldn’t be illegal.

            2. Yeah. Sure.

              I jumped off the SSM bandwagon when the argument became “If you oppose SSM then you are motivated by hatred, and the only way to prove you are not motivated by hatred is to support SSM.”

              It’s a completely fallacious argument. Textbook ad hominem with a bit of circular logic. It makes perfect sense emotionally, which is why liberal progressives use it all the time. Fallacies make sense to them if they appease the emotions.

              Unfortunately many libertarians turn into gibbering progressives on this issue because it makes them emotional.

              1. The argument is that there isn’t a rational argument to deny equal marriage rights, and that all arguments against it seem to be motivated by religious bigotry. You certainly haven’t disproved that claim, as you haven’t made a rational argument.

                All you’ve said is “liberals were mean to me, so I’m gonna hold the opinion of a bigot out of spite.”

                1. All you’ve said is “liberals were mean to me, so I’m gonna hold the opinion of a bigot out of spite.”

                  Liberals are thieves and liars. I hate thieves and liars.

                  1. You’re a baby.

                    1. You’re a baby.

                      This is Tony’s concept of “rational argument”.

            3. Can you provide a dictionary from, say, 1930 that has such a definition of marriage? I just doubt it, that’s all.

              Secular marriage (the one in the SCOTUS right now) is not a legal right, it is a license. The government then gives “married” people preferences under the law.

              Now who should be allowed to get that license?

              Who fooled all of you “libertarians” into ignoring the fact that the only ones who used to argue that government get out of our lives used to be libertarians? Now you just squabble among yourselves to divide the government spoils just like Dems. and Repubs.

          3. This is law in WI, btw. If same sex couples go to another state to get married they face a fine of 10k and 10 years in jail.

            So.. yeah.

  9. From what I gather, libertarians think their every policy belief, even on such routine matters as taxing and appropriating, ought to be protected from majority whims as if their entire worldview constituted a civil right.

  10. Assuming that DOMA gets shot down and generally Gays get the right to marry. How long before polygamy, clan marriages and incestual marriage becomes legal?

    And then how long before someone realizes, hey I can legally marry my kids and pay no inheritance taxes?

    1. Well, the one guy did try to adopt his girlfriend for that reason.

      1. Well, not exactly that reason, but something similar to do with passing his wealth to her.

    2. Just to be safe we should retroactively annul all straight marriages. You never know about those slippery slopes.

      1. Sounds good to me.

    3. You may have to take on those challenges, sure. But as long as we’re talking consenting adult humans here, that’s where the slope gains perfectly sound traction.

    4. As long as the involved parties are consenting adults legally able to enter into a contract, none of my or anybody else’s damn business.

  11. In the passion for “federalism” and protecting the States from federal control, I believe people often forget that the 10th amendment is not solely about the authority of the subdivisions of government we call state, but is also an expression of the analogous relationship between the states and the People.
    If the federal government’s authority is limited to that which the Constitution authorizes or explicitly protects, then the same principle applies (IMHO) to the states – the power of the state power is restricted to that which is specifically authorized or explicitly protects.
    The issue is illustrative of an important principle – that government power/authority is limited to what is explicitly listed as law. Everything else is presumed a freedom of the individual. So much of what our politics has been about for a long time is people trying through various means (democracy for one) to tell people what choices to make.
    If it doesn’t endanger or harm another person, butt the fuck out. It is not within the authority of any democratic mechanism simply because it gets voted on by some group of self-important douche bags.

    1. If it doesn’t endanger or harm another person directly and tangibly, butt the fuck out. It is not within the authority of any democratic mechanism simply because it gets voted on by some group of self-important douche bags.

      Minor but important addition to an otherwise admirable sentiment 🙂

      1. OT: How does ReasonOnline behave on Android phones?

  12. Jacob Sullum could not be more wrong. The federal government’s refusal to apply the equal protection clause of the 14th amendment against all states lets states’ legislators discriminate against singles in favor of marrieds through tax and subsidy laws which reward privileges to marrieds for behavior at the expense of singles.

    Marriage status should not be basis for tax and subsidy laws. Having such discriminates against any individual who has not been conferred the legal privilege of that status.

    A proper ruling by USSC robes would be to apply the equal protection clause of the 14th amendment and strike down tax laws of the various states that favor marrieds ? heteros or homos ? over singles.

    1. Which is the same thing as eliminating marriage including the legal protections and rights that come with it. This is a nonsense argument, and not just because of its political implausibility.

      1. All of the legal protections and rights privileges associated with marriage outside tax laws and immigration are state issues anyway. The fact that you think teh buttsecks ought to entitle one to the same government cookie jar as teh straight secks doesn’t change the issue of the legitimacy of the entitlement in the first place.

        1. Which is not the issue. In fact it’s more than a little suspect that you’d make it the issue when everyone happens to be talking about gay marriage equality.

  13. If the federal government treated a marriage as a disregarded entity, similar to the way it treats, say, an LLC, this wouldn’t even be a issue. But yes, to acknowledge a state’s straight marriages but not its same sex marriages, does undermine federalism and seems blatantly anti constitutional vis-a-vis full faith and credit. Of course, forcing another state to acknowledge those same sex marriages if it has no such legal construct within its own borders would do the same thing, so the interpretation is important.

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  15. whenever same sex marriage comes up i treat all arguments the same way: i substitute “interracial marriage” with “same sex marriage”.

    and viola, same sex advocates win. and there WILl be a federal law, kicking it to the states is just not gonna cut it, just like it didn’t cut in for the case of interracial marriage.

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  17. Eliminate all preferential treatment for married couples. Problem solved.

    1. you mean all preferential legal treatment, right? You don’t mean that it should be illegal to discriminate in social relations.

      “you have more Facebook friends who are married than single, therefore you are preferentially treating married people; single people who would like to be your friend have a cause of action”. … would be BAD.

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