A Silver Lining in the DOMA Cases?

This article points to the ways in which current legal challenges to the 1996 Defense of Marriage Act rest upon assertions of traditional state authority to define marriage. Here, for example, is how New York, Vermont, and Connecticut put it in their amicus brief in Windsor v. U.S. , a case in which Edie Windsor challenges the federal government’s authority to collect taxes on the estate her partner (they were married in Canada) left her.

• Since the founding of our Nation, the whole subject of domestic relations, including the determination of marital status, has been committed to state law and state policy judgments.

• It is, and always has been, the role of the States to determine who is married and who is not.

While these arguments are deployed on behalf of states that regard DOMA’s federal “definition of marriage” as anathema and that employ very strong language to characterize those who don’t recognize same-sex marriage, it remains the case that they affirm each state’s authority to define marriage for itself. Those states that wish to adhere to a traditional definition of marriage are free to do so.

To be sure, I suspect that this affinity for federalism is more strategic than principled. I fear that these particular friends of the state authority to define marriage will soon insist that what Congress cannot do in defense of traditional marriage, the federal courts can do on behalf of “marriage equality,” with a warrant, perhaps, from the Fourteenth Amendment’s Equal Protection Clause.

Traditional state authority in this arena may not survive the next Supreme Court appointment by a Democratic president. But we can always argue, citing these decisions, and the briefs giving rise to them, that this is a state matter, to be determined by the states, resting upon the kind of prudential and policy judgments state legislators are qualfiied to make.