Towards DOMMA

In June of last year, the Supreme Court struck down the “federal” component in the Defense of Marriage Act (DOMA). In that part of the Act, Congress had simply asserted that, for purposes of federal law, “‘marriage’ means only a legal union between one man and one woman as husband and wife.”   

The laws on marriage are typically made in the States, but there are many questions that must arise in federal law about the meaning of marriage – e. g., who counts as a “married couple” in immigration and naturalization, in matters of taxation, or benefits in the military?  

But Justice Kennedy would write, with a straight face, that this federal portion of DOMA had trodden upon the  “historic and essential authority [of the States] to define the marital relation,” and sought to “influence or interfere with state sovereign choices about who may be married.”

But of course that is exactly what the Supreme Court has done in many cases – most notably, when it interfered with the “sovereign choice” of Virginia to bar marriage across racial lines, or with the policy of Wisconsin in withholding a marriage license from a man who had failed to pay for the support of his child in an earlier marriage.

What we see here is one of the tricks-of-the-eye in our constitutional system: For some reason the federal courts are not seen in certain instances as branches of the federal government. And even many worldly people curiously fail to notice that whatever extends the reach and power of the federal courts works to extend the reach of the federal government.

Full disclosure: I was one of the movers of DOMA, and the odd thing is that the Court has left standing the key part of the bill that I’d been advocating. That was Sec. 2, holding that no State would be “required” to treat as a marriage under its laws a same-sex marriage coming in from another State.

But Justice Kennedy has already argued that the refusal to accept same-sex marriage can be explained mainly by an aversion to the homosexual life, and that this aversion can be imputed to an irrational hatred, an “animus.” The conclusion then flows: the laws in the States that refuse to accept same-sex marriage are patently unjustified, with no reason to support them.

As Justice Scalia aptly remarked, we are simply waiting now for the “second shoe to drop.” And drop it has, as judges have struck down the laws on marriage in a series of cases in Virginia, Utah, Oklahoma, Kentucky, Michigan, Ohio, Tennessee, and other States.

. . . and “Yes to monogamy

Readers of this column know that I favor the mode of “putting something on the table.” In Congress, that means keeping the congressional hand in this matter. And whatever keeps the congressional hand in, keeps the rest of us in the game as well. Rep. Randy Weber of Texas has come forward with the “State Defense of Marriage Act.”  That Act would seek in fact to preserve the part of DOMA that Justice Kennedy has affected so far to leave intact.

There have been moves to regard the legal site of marriage as the State in which the marriage is performed or “celebrated.” But in many parts of our laws, the site of marriage depends on where the parties declare their “domicile.” Rep. Weber’s bill would make that simple point, and it would be putting the question to Justice Kennedy: We are taking seriously here the part of the law you claim to respect. Will you?

But in the meantime, the politics of the issue will be sweeping past: Two years hence, Hillary Clinton will find no strain in saying that we’ve all now come to accept same-sex marriage as thoroughly legitimate, and so how could it be that a same-sex couple married in New York cannot take their marriage to Texas as any man and woman may? That would have to mark, she would say, an invidious discrimination.

But I don’t think that Hillary Clinton could as readily sweep past the second bill we would put on the table. And that is the measure offered by Carrie Severino, a former clerk to Justice Thomas: the Defense of Monogamous Marriage Act (DOMMA). The Left keeps ignoring the argument made now for years: that if marriage is no longer seen as a framework of a man and woman, begetting and nuturing children, why would a “marriage” be confined to two persons?  Why not ensembles of three or more who profess to love each other? 

The Left has insisted that their position does not entail the acceptance of polygamy. Well, here is their chance to put their votes where their words have been. Let them be the ones now explaining to their friends why they may not have the “right to marry” the ones they love? This will not be an easy call for the Democrats – in fact, this could set off convulsions among them. And why should the rest of us spare them that experience?

If the composition of the Senate changes this fall, this measure could be put on the table in time for the elections in 2016. If it takes hold, it could well gather support in enough States even to pass a constitutional amendment. And if that’s the case, the momentum to pass this bill could help restore in its sweep. . .the marriage of one man and one woman.

Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.