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."