The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Tenth Amendment, U.S. Constitution
Find a direct reference to marriage anywhere in the US Constitution. Of course, there isn’t one. And of course, there are no references to abortion, drugs, poverty, agriculture, medical care, etc., etc., etc. over which the federal government has nonetheless undertaken, driven by the instinct, common to all republics, to spew forth copious legislation.
When DOMA was passed in 1996,
there were no states there was only one state (Hawaii) in which gay marriage had been recognized, and so its effect was a practical nullity. Not uncommon legislatively, it was passed for its value as political theater, a farce from its inception.
There are several such states that recognize gay marriage now, so the Act, in its application to a gay marriage fully sanctioned by state law, would operate to invalidate state law. If ever there were a power not delegated to the United States by the Constitution, nor prohibited by it to the states, family and marriage law is it. The federal government, until DOMA, simply recognized marriages as the various states sanctioned them.
So the Supreme Court should throw the silly law out. Surely the Constitution, a covenant creating a government of limited scope and power (or at least that was its stated intent), should limit the federal government in this arena which has always, but always been the exclusive province of state governments.
It is no excuse that the federal government has now grown so large and so obtrusive that the concept of federalism has by now been fairly swept away, or that the federal government should be allowed, as an employer, to set its own policies regarding what it will and won’t recognize as legitimate marriages. Exxon and IBM don’t get to decide if their employees are legitimately married. They must look to state law for the answer. So too must the federal government when it enters the employment marketplace.
Dispensing with DOMA would, in one fell swoop, end the gay marriage controversy at the federal level, and return the issue to the states, where it properly belongs. The Constitution is deafeningly silent when it comes to marriage, no matter that the Court has often issued rulings that effectively created a right to marriage as part of the freedoms protected in the penumbra (another creation of the Court) of the Bill of Rights. If the Court rules DOMA unconstitutional as violative of the Tenth Amendment, it would instantly legitimate every gay marriage entered under any state’s law, across the nation, because another principle of federalism could then be invoked–that each state must afford the other state’s law their “Full Faith and Credit”. Voila! No more gay marriage controversy.
Would that the Court had been so wise and prescient in 1973 when it discovered, buried in the hidden texts of the Constitution, that the founding fathers afforded women a constitutional right to abort fetuses at their whim. Had the Court left such matters to the states, and not overstepped its federalism bounds, North Dakota and Arkansas’ new statutes severely limiting abortion might today be met with a collective yawn, instead of a gasp and chagrin. Left to the states to decide, if women wanted an abortion, there would always be states where they could get one.
I know how desperately gays love to march for their rights, and how desperately they wish for the Court to realize another right in the penumbra which specifically provides for their marriage. But the Court needn’t recognize any such right to dispense with DOMA. It need only invoke, for one of the very few times in its history, the Tenth Amendment, and tell everyone to take their banners and parades to the state houses. Defining marriage is not within the purview of the federal government, and never has been.
Because it is the right and proper thing for the Court to do; because it is the only justiciably defensible thing given the plain words of the Constitution; because it is the one thing to do that will render the Court’s further musings irrelevant in the controversy (as any Supreme Court interpreting the intent of a document that has stood substantially unchanged for over two hundred years ought be), I fully expect the Court to instead find some gay marriage right in the Constitution’s penumbra, probably located somewhere near the right of a woman to abort her fetus. (If that right is in there, is there any right that isn’t?) Instead of simply resolving the problem by recognizing that the federal government has no role to play in defining marriage, the Court will likely decide to strike down the vast majority of state law on the matter. And all because it craves relevancy, and the power and attention which flow with it.
If one day the republic again disintegrates into civil war, the Court’s wholesale abandonment of the principles of federalism as provided in the Constitution will undoubtedly have (again) played a significant role. And their abandonment will have come selfishly, as the Court tried to make itself continually relevant by creating and bestowing legal rights it could then force upon society through the auspices of the federal government. Throughout its over two hundred year history, the Court has behaved more as a super legislature than an impartial interpreter of the Constitution, as is its charge. For once, for its own good and for the good of the country, it would be nice if the Court would abandon the hubris and resolve to stay out of a controversy on which the Constitution plainly has nothing to say, which by default, renders it a matter “reserved to the states, respectively, or to the people”.