The major media coverage of Obama's change of heart (a/k/a evolution) on same-sex marriage has been to assert that the President now is in favor of same-sex marriage, but that he thinks the issue is one for each state to decide on its own. Some commentators in the blogosphere have noted that this position is at odds with the President's refusal to defend DOMA. Now comes Lyle Denniston to argue that Obama's position on DOMA is consistent with state autonomy on this issue. Denniston is an astute observer of constitutional issues, and thus I am loathe to disagree with him, but he's wrong on this matter. His basic point is that the administration's refusal to defend DOMA stems from the belief that DOMA interferes with state autonomy. As added evidence, Denniston cites the adminstrations's failure to add its voice to the legal opposition to California's Propostion 8.
The flaw in Denniston's argument is that DOMA does not interefere with state autonomy. DOMA does two things: First, it states that no state is "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 under the laws of such other state ... ." Second, it limits the legal benefits accorded to married persons under federal law to married persons of the opposite sex. Contrary to Denniston's assertion, it does not federalize marriage law, although, of course, it does limit the federal benefits of marriage to traditional marriages. In that narrow sense, it "federalizes" an aspect of marriage law. But the other aspect of DOMA preserves state choices on this volatile marriage issue. The President cannot credibly claim that his opposition to DOMA is all about fostering state discretion on same-sex marriage. He wants it all ways -- he's for same-sex marriage, but he wants states to decide on their own, yet he's opposed to DOMA's preservation of state ability to do just that.
"He wants it all ways -- he's for same-sex marriage, but he wants states to decide on their own, yet he's opposed to DOMA's preservation of state ability to do just that."
This is missing a really important point. The administration's opposition to DOMA -- or at least its refusal to defend the constitutionality of it -- is confined to Section 3. Which is the bit that codifies the non-recognition of SSM at the federal level.
(By the way, the argument that a federal law that changes the federal governmment's stance towards marriage benefits from "we'll do whatever the person's state does" to "we won't recognize SSM even if the state does" isn't "federalizing" marriage in large part seems specious to me, but whatever.)
In any event, if the view that (1) allowing SSM marriage is good as a policy matter, but (2) states should be free to disagree with that, but (3) for those states that do authorize SSM, the federal government will defer as it historically has, is "having it all ways," then I guess I want to have it all ways, because that's exactly my position as well.
Posted by: Joe (not that one) | May 11, 2012 at 11:30 AM
Section 2 of DOMA does not afford states the power to recognize or refuse to recognize s-s marriage, at least if the issue is whether, for example, Ohio can refuse to recognize a s-s marriage of Ohio domiciliaries that is celebrated in Iowa. Ohio has that power w/ or w/o Section 2 of DOMA (assuming for the moment that no other constitutional protections apply).
Posted by: m. strasser | May 11, 2012 at 01:34 PM
The point of section 2 of DOMA (whether or not you agree with its policy) is to ensure that the full faith and credit clause of the Constitution cannot be invoked to compel recognition of an out-of-state s-s marriage.
Posted by: Calvin Massey | May 11, 2012 at 02:37 PM
But § 2 isn't really necessary for that purpose, since most states already have a public-policy exception built into their state-law obligations to accord F/F/C to foreign judgments. Section 2 is an exclamation point on that, perhaps, but otherwise is largely symbolic.
Posted by: Howard Wasserman | May 11, 2012 at 02:42 PM
Section 2 did not accord a power to states that they did not already have with respect to the marriages of their domiciliaries. (Marriages are not thought of as involving judgments.) However, Section 2 (on at least one interpretation) does give states the power not to recognize a divorce judgment validly issued elsewhere. Absent section 2, states could not invoke a public policy exception to refuse to give effect to a divorce judgment, absent fraud or lack of jurisdiction. Section 2 does not do work with respect to recognition of foreign marriages but does do work with respect to state recognition of foreign divorces.
Posted by: m. strasser | May 11, 2012 at 02:54 PM
Although it is a bit off the point, I cannot help noting that President Obama and Vice President Cheney are on the same page on same sex marriage (although they may be on slightly different lines). This must cause great pain for some loyalist of both parties.
Posted by: Bill Turnier | May 13, 2012 at 02:23 PM
Hmm, so, I do not understand why one would talk about the Prop 8 case as all that significant. Denniston does and I don't get why. It cannot be ignored that Prop 8 was determined to have no legal effect on RDP's and to be essentially a symbolic law, correct? If a symbolic law violates equal protection, does that necessarily mean that a law that actually affects legal rights can be mandated against the states using that precedent? One would assume the arguments surrounding legitimate state objective would be different in the instance of a symbolic law versus one with substantive punch.
Posted by: CC | May 14, 2012 at 02:20 PM