Similarly in the DOMA issue, which the court will consider Wednesday, the interests of states are at the heart of the matter. But in this case, it’s state’s that oppose same-sex marriage that support the supremacy a federal law that refuses to recognize unions where they are allowed.
On the other hand, states supporting same-sex marriage say states should have the right to determine who can or cannot be married. They argue it’s unconstitutional for the federal government to refuse to recognize unions legally performed under state law.
“The Defense of Marriage Act represents an unprecedented intrusion into an area of law that has always been controlled by the states,” Massachusetts Attorney General Martha Coakley, a Democrat, said when announcing that state’s involvement. “This discriminatory and unconstitutional law harms thousands of families in Massachusetts and takes away our state’s right to extend marriage equality to all couples.”
The states opposing same-sex marriage, though, see the far-reaching federal law as an extra bulwark against having to recognize same-sex unions performed elsewhere. Many state laws banning such unions also block the state from recognizing those performed in those that do. Without the federal law, they say, their state laws could be undermined by other states’ marriages if the federal government were to recognize them.
“Our nation is currently engaging in a robust debate on same-sex marriage,” argues Michigan’s brief filed in the case. “This debate should be allowed to play out in our democratic institutions and should not be short-circuited by the courts.”
Former Solicitor General Paul Clement, who’s representing congressional Republicans defending DOMA, echoed that.
“One of the great benefits of federalism is that it allows states to adopt ‘novel social and economic experiments without risk to the rest of the country,’” Clement’s brief argues. “It certainly was rational for Congress to decide to allow states to act as laboratories of democracy, while the federal government awaited the results of such state experiments.”
For some, though, the states’ case against same-sex marriage smacks of hypocrisy or “opportunistic federalism,” as Steven Schwinn, a law professor at the John Marshall Law School in Chicago put it.
“It’s shocking to me,” he said, “that people who on the political right have been screaming for so long about states’ rights are now lining up behind DOMA.”
But at its most basic level, the states’ argument in favor of DOMA and against same-sex marriage ultimately boils down to preserving the patchwork marriage law regime that’s existed since the states began their divergent path two decades ago. Indeed, Indiana’s Zoeller has said he sees his argument as equally supportive of states’ right to allow, or forbid, same-sex unions.
The duality is an illustration of the issue’s complexity. In one instance, it is states’ authority to set their own laws that preserves the existing patchwork. But in another, it is the federal government’s refusal to recognize same-sex unions in states that allow them which serves to protect the same status quo.
Ultimately, that confluence of state and federal laws – and the nation’s long history of struggling with states’ rights on a variety of issues – could make the court’s ultimate decision all the more consequential.
As Mae Kuykendall, a law professor at Michigan State University, told Stateline: “It’s not possible to confine social change within the state borders. When the culture changes, it spreads all over the country.”
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