The Defense of Marriage Act and federalism: A states' rights argument in defense of same-sex marriages

Family Law Quarterly

Volumn 31, Issue 3, 1997, Pages 571-583

  Rothstein, Melissa ^a  

^a NONE

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EID: 0031314780     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (89)

1. Baehr v. Miike, 1996 Haw. App. LEXIS 138 (Dec. 3, 1996). The Hawaii Supreme Court required the district court to analyze the policy under a strict scrutiny standard based on the state constitution. The court distinguished this state standard from that required under a federal constitutional claim, in which there is no explicit protection from sex discrimination. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). The Baehr decision is stayed pending appeal. This is the last appeal available, however, and a final decision is expected by the end of 1997. See Facts on File, Dec. 5, 1996, at 893 C1, available on LEXIS, News Library.
2. Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified as amended at 28 U.S.C. § 1738C; 1 U.S.C. § 7). The legislative history is replete with testimony referring to the Hawaii litigation as the primary impetus for the Defense of Marriage Act (DOMA). See, e.g., 142 CONG. REC. S12015 (daily ed. Sept. 30, 1996) (statement of Sen. Abraham); 142 CONG. REC. S10100, S10105 (daily ed. Sept. 10, 1996) (statement of Sen. Gramm); 142 CONG. REC. H7480, H7489 (daily ed. July 12, 1996); 142 CONG. REC. H7270, H7276 (daily ed. July 11, 1996) (Rep. Largent saying: "this current situation that is taking place in Hawaii . . . is a frontal assault on the institution of marriage and, if successful, will demolish the institution in and of itself with that redefinition.").
3. "[T]He word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." Defense of Marriage Act, Pub. L. No. 104-199 § 3, 110 Stat. 2419 (1996).
4. No State, territory, or possession of the United States, or Indian Tribe, shall be required to give effect to any public act, record or judicial proceeding in any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. Id. § 2.
5. U.S. CONST. amend. X.
6. U.S. CONST. art. IV, § 1; 28 U.S.C. § 1738 (1988).
7. See WILLIAM M. RICHMAN & WILLIAM L. REYNOLDS, UNDERSTANDING CONFLICT OF LAWS, § 116, at 362-63 (2d ed. 1993);
8. EUGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS § 13.1, at 451-52 (2d ed. 1992).
9. See, e.g., In re Estate of Murnion, 686 P.2d 893, 899 (Mont. 1984);
10. RESTATEMENT (SECOND) CONFLICT OF LAWS § 283, cmts. f, i (1971);
11. Uniform Marriage and Divorce Act § 210 cmt., 9A U.L.A. 561 (1987).
12. See, e.g., Bucca v. State, 128 A.2d 506, 507 (N.J. 1957) (incestual marriage will not be recognized and may result in criminal prosecution); Sood v. Edward R., 208 Misc. 819, 820 (N. Y. 1955) (noting polygamy and incest exceptions to recognizing marriage valid in place of celebration); Judith Resnick, "Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682, 1743-44 (1991) (noting that federal antipolygamy legislation was directed and implemented only in territories, where the federal government acts like a state). See infra notes 57-58 and accompanying text.
13. See 142 CONG. REC. S12015, S12016 (daily ed. Sept. 30, 1996) (statement of Sen. Abraham).
14. See 142 CONG. REC. S10100, S10102 (daily ed. Sept. 10, 1996) (Sen. Kennedy citing Dean Kay of Boalt Hall, University of California at Berkeley Law School); 142 CONG. REC. H7270, H7277 (daily ed. July 11, 1996) (statement of Rep. Studds).
15. In addition to the infringements on state legislative power, this may be seen as an attempt to override state courts as well. Some scholars believe that state courts are more likely than the legislature to move toward the legalization of same-sex marriage. See Lisa M. Farabee, Note, Marriage, Equal Protection, and New Judicial Federalism: A View from the States, 14 YALE L. & POL'Y REV. 237 (1996). While not directly usurping a state legislature's power to define who may marry, the law is intended to be persuasive among state judges who will be the actual determinants in marriage disputes.
16. 116 S. Ct. 1620 (1996).
17. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.") (dictum); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage is one of the "basic civil rights of man"). In Loving, the miscegenation statute at issue was struck down on Fourteenth Amendment equal protection and due process grounds. Some members of Congress criticized DOMA for its similarity to Loving in terms of being discriminatory. See, e.g., 142 CONG. REC. S10100, S10104 (daily ed. Sept. 10, 1996) (statement of Sen. Moseley-Braun); id. at 10107 (statement of Sen. Kerrey); 142 CONG. REC. E1320 (daily ed. July 18, 1996) (statement of Rep. Collins); 142 CONG. REC. E1299 (daily ed. July 17, 1996) (statement of Rep. Valazquez).
18. Griswold v. Connecticut, 381 U.S. 479, 486 (1965) ("We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. [I]t is an association for as noble a purpose as any involved in our prior decisions."); see also id. at 495 (Goldberg, J. concurring).
19. Zablocki v. Redhail, 434 U.S. 374 (1978) (holding that a statute which required an individual mandated to pay child support to obtain court permission to marry violated equal protection).
20. See Michael L. Closen & Carol R. Heise, HIV-AIDS and the Non-Traditional Family: The Argument for State and Federal Judicial Recognition of Danish Same-Sex Marriages, 16 NOVA L. REV. 809, 831 (1992).
21. See, e.g., Dean v. District of Columbia, 653 A.2d 307 (D.C. Ct. App. 1995) (no constitutional basis to allow for gay marriage); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (First Amendment claim did not preclude applying marriage as commonly used); Baker v. Nelson, 191 N.W.2d 185(Minn. 1971) (Fourteenth Amendment due process clause did not preclude using traditional definition of marriage as one man/one woman).
22. Baehr v. Lewin, 852 P.2d 44, 57 (Haw. 1993) ("Applying the foregoing standards to the present case, we do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions.").
23. See ALA. CODE § 30-1-9 (1994); ARIZ. REV. STAT. ANN. § 25-151 (1994); D.C. CODE ANN. § 30 (1993); ME. REV. STAT. ANN. tit. 19, § 1 (West 1993); MASS. GEN. LAWS ANN. ch. 207, § 1 (West 1987); N.J. REV. STAT. § 37 (1973 & Supp. 1994); N.M. STAT. ANN. § 40.1.1 (Michie 1978); N.Y. DOM. REL. § 1 (McKinney 1988). Some states have domestic partnership benefits, which may allow for some of the benefits of marriage. See Jennifer Gerarda Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage, 68 S. CAL. L. REV. 745, 750 (1995).
24. In addition, other cultures and eras have been more tolerant of same-sex marriage. See id. at 751; JOHN BOSWELL, SAME-SEX UNIONS IN PREMODERN EUROPE (1994);
25. William Eskridge Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1422 (1993); Closen & Heise, supra note 17, at 811 n.6 (citing the Danish Registered Partnership Act, No. 372 (Denmark 1989)).
26. 116 S. Ct. 1620 (1996).
27. See id. at 1624-25 (citing ordinances quoted in the state court decision, Evans v. Romer, 854 P.2d 1270 (1993)).
28. Id. at 1628 ("A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.").
29. Id. at 1628.
30. Id. at 1624.
31. See, e.g., 142 CONG. REC. S10552 (daily ed. Sept. 13, 1996) (statement of Sen. Dorgan); 142 CONG. REC. S10100, S10119 (daily ed. Sept. 10, 1996) (Sen. Kassebaum's testimony).
32. Romer, 116 S. Ct. at 1626 ("[E]ven if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of specific rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.").
33. See id. at 1629 ("We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. . . . A State cannot so deem a class of persons a stranger to its laws.").
34. See, e.g., 142 CONG. REC. S10100, S10107 (daily ed. Sept. 10, 1996) (Sen. Kerry stating "[T]his debate is fundamentally ugly, and it is fundamentally political, and it is fundamentally flawed."); 142 CONG. REC. S10579, S10580 (daily ed. Sept. 16, 1996) (statement of Sen. Pell).
35. 478 U.S. 186 (1986).
36. 142 CONG. REC. H7480, H7500 (daily ed. July 12, 1996) (testimony of Rep. Hyde); see also Romer, 116 S. Ct. at 1629 (Thomas, J. dissenting).
37. Bowers, 478 U.S. at 190.
38. See 142 CONG. REC. S10100, S10102 (daily ed. Sept. 10, 1996) (Sen. Kennedy quoting Cass Sunstein's testimony: "Like the Colorado amendment struck down in Romer, this bill is 'unprecedented . . . an oddity in our constitutional tradition drawn explicitly in terms of sexual orientation.' Insofar as it draws the particular line that it does, it risks running afoul of Romer's prohibition on laws based on animus against homosexuals.").
39. See Brown, supra note 20, at 782-85, 795-97; see also Baehr v. Lewin, 852 P.2d 44, 49 (Haw. 1993) (plaintiffs provided approximately 150 "rights and benefits" under Hawaiian law contingent on marital status).
40. See, e.g., 26 U.S.C. § 1 (1996) (federal tax deductions); 42 U.S.C. § 1396r-5 (1995) (Medicare coverage for institutionalizing a spouse). Sen. Burns justified the federal definition of DOMA specifically on these grounds: Since the word "marriage" appears in more than 800 sections of federal statutes and regulations, and the word "spouse" appears more than 3,100 times, [if same-sex marriages were recognized] Federal benefits, such as Veterans, Health and Social Security would all be subject to revision. 142 CONG. REC. S10100, S10116 (daily ed. Sept. 10, 1996) See also id. at 10101 (Sen. Lott's testimony); id. at S10103 (Sen. Nickles' testimony); id. at S10105 (Sen. Gramm's testimony); id. at S10121 (Sen. Ashcroft's testimony); CONG. REC. H7480, H7484 (daily ed. July 12, 1996) (statement of Rep. Sensenbrenner).
41. See Pub. L. No. 104-199, § 3, 110 Stat. 2419 (1996) (amending 1 USC § 7(a)). An amendment to limit the federal definition only to states without a state definition was proposed by Representative Frank, but it failed. See 142 CONG. REC. H7480, H7498 (daily ed. July 12, 1996).
42. Cf. Resnick, supra note 9. 38. See, e.g., ALA. CODE § 30-1-4 (1994) (establishing minimum age for contracting marriage as fourteen); FLA. STAT. ch. 741.05 (1996) (establishing minimum age for consenting to marriage as eighteen); Mo. REV. STAT. § 451.020 (1996) (declaring marriage between first cousins void); In re Matter of Loughmiller's Estate, 629 P.2d 156 (Kan. 1981) (noting that marriage between first cousins is not valid under Kansas law but is valid in Colorado).
43. See THE FEDERALIST No. 39, at 195 (JAMES MADISON) (Max Beloff ed., 1948) (national power "extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects."); McCulloch v. Maryland, 17 U.S. 316 (1819); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816) (the federal government "can claim no powers which are not granted to it by the constitution."); see also U.S. CONST. amend. X; New York v. United States, 505 U.S. 144, 155-56 (1992).
44. 115 S. Ct. 1624 (1995).
45. In Lopez, a defendant convicted under the Gun-Free School Zones Act, which made possession of a firearm within a school zone a federal crime, successfully sought to dismiss his conviction because the law exceeded Congress' power to legislate under the Commerce Clause. Id.
46. See id. at 1632 (faulting the government's reasoning that it could regulate any activity related to economic activity because that would also encompass marriage and other family law matters); id. at 1643 (J. Thomas concurring) ("the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage. . . . Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce.").
47. Anne C. Dailey, Federalism and Families, 143 U. PA. L. REV. 1787, 1789 (1995).
48. See Lopez, 115 S. Ct. at 1632; id. at 1643 (J. Thomas concurring); id. at 1661 (J. Stevens dissenting).
49. See, e.g., Baehr v. Lewin, 852 P.2d 44, 58 (1996) ("The power to regulate marriage is a sovereign function reserved exclusively to the respective states.") (citing Salisbury v. List, 501 F. Supp. 105, 107 (D. Nev. 1980); O'Neill v. Dent, 364 F. Supp. 565 (E.D.N.Y. 1973)); United States ex rel Modianos v. Tuttle, 12 F.2d 927 (E.D. La. 1925) ("each sovereign state . . . has the right to declare what marriages it will or will not recognize, regardless of whether the participants are domiciled within or without its borders, provided that the purpose is declared in unmistakable language").
50. 142 CONG. REC. S10100, S10124 (daily ed. Sept. 10, 1996) (statement of Sen. Kerrey); see also 142 CONG. REC. H7480, H7489 (daily ed. July 12, 1996) (Rep. Moran stating "[T]he 10th Amendment was designed to prevent us from preempting States' rights. Yet for this purpose, we are willing to federalize the one area of law that has been under State control for the last 200 years.").
51. Rep. Weldon cited the 1888 Supreme Court case of Murphy v. Ramsey, which defined marriage as "union for life of one man and one woman." 114 U.S. 15, 45 (1888), cited in 142 CONG. REC. H7480, H7493 (daily ed. July 12, 1996). However, this case involved bigamy; same sex marriage was not at issue.
52. See U.S. CONST. amend. X (reserving local powers exclusively to the states).
53. See 142 CONG. REC. S10100, S10124 (daily ed. Sept. 10, 1996) (Sen. Kerrey's testimony).
54. U.S. CONST. art. IV, § 1; see also Brown, supra note 20, at 787; Donald H. Regan, Siamese Essays: (1) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865 (1987) ("[T]he Full Faith and Credit Clause does not set down principles of legislative jurisdiction. Rather it presupposes them.").
55. See UNIFORM MARRIAGE AND DIVORCE ACT § 210, 9A U.L.A. 147 (1987) [hereinafter UMDA];
56. RESTATEMENT (SECOND) CONFLICT OF LAWS § 283, cmt. i (1971);
57. Note, In Sickness and In Health, in Hawaii and Where Else?: Conflict of Laws and Recognition of Same Sex Marriages, 109 HARV. L. REV. 2038 (1996); Richman & Reynolds, supra note 7, § 116, at 362-63.
58. See, e.g., In re Estate of Murnion, 686 P.2d 893, 899 (Mont. 1984); see also RESTATEMENT (SECOND) CONFLICT OF LAWS § 283, cmts. f, i (1971); UMDA § 210 cmt.
59. See Mary N. Cameli, Extending Family Benefits to Gay Men and Lesbian Women, 68 CHI.-KENT L. REV. 447, 477 (1992);
60. Otis R. Damslet, Note, Same-Sex Marriage, 10 N.Y.L. SCH. J. HUM. RTS. 555, 591 (1993).
61. RESTATEMENT (SECOND) CONFLICT OF LAWS § 283 (2) (1971). [A] marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. This exception is not universally accepted. See UMDA § 210.
62. See, e.g., ILL. COMP. STAT. Ch. 750, § 213 (1996); see also supra note 9.
63. Marriage evasion statutes deny recognition of an out-of-state marriage when the parties specifically married out of state to avoid specific marriage requirements. Thirteen states have a marriage evasion statute. See Brown, supra note 20, at 793 n.17. The National Conference of Commissioners on Uniform State Laws proposed a Uniform Marriage Evasion Act, but it was withdrawn. See id. at 792-93.
64. Compare Commonwealth of Kentucky v. Wasson, 842 S.W.2d 487, 491 (Ky. 1992) (state's right to privacy made criminalization of homosexual "deviant sexual intercourse" unconstitutional), with Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that criminalization of homosexual sodomy did not violate the federal constitution); see also Ronald F. Wright, A Post-Webster Reminder About Delegation and Regulation, in ABORTION AND THE STATES: POLITICAL CHANGE AND FUTURE REGULATION 120 (Jane Wishner ed., 1993) ("[A] structure is beginning to emerge in which state supreme courts are interpreting state constitutional provisions more broadly than the Supreme Court interprets similar federal provisions."); Farabee, supra note 12, at 237 (noting a "new judicial federalism" in which state courts are more stringent on equal protection and are thus more ripe to recognize same-sex marriage).
65. See 142 CONG. REC. S10100, S10101 (daily ed. Sept. 10, 1996) (Sen. Lott stating: "It is a preemptive measure to make sure that a handful of judges, in a single State, cannot impose an agenda upon the entire Nation."); 142 CONG. REC. S12015 (daily ed. Sept. 30, 1996) (Sen. Abraham's testimony). A poll conducted for Time magazine in 1989 found that 69% of Americans do not support legal recognition of same sex marriage. Walter Isaacson, Should Gays Have Marriage Rights, TIME, Nov. 20, 1989, at 101.
66. See 142 CONG. REC. H7480, H7484 (daily ed. July 12, 1996).
67. 142 CONG. REC. H7441, H7447 (daily ed. July 11, 1996) (statement of Rep. Conyers).
68. U.S. CONST. art. IV, § 1.
69. 142 CONG. REC. S5931, S5932 (daily ed. June 6, 1996) (letter from Lawrence Tribe to Sen. Kennedy stating: "Power to specify how a sister-state's official acts are to be 'proved' and to prescribe 'the effect thereof includes no power to decree that, if those official acts offend a congressional majority, they need to be given no effect whatsoever by any State that happens to share Congress's substantive views.").
70. 142 CONG. REC. H7480, H7496 (daily ed. July 12, 1996) (Rep. Jackson stating: "While the Supreme Court has not specifically applied the full faith and credit clause to the status of marriage, we do know that there is absolutely no legal precedent for Congress to invite some states to ignore the official acts of others."). In Katzenbach v. Morgan, 384 U.S. 641 (1966).
71. 142 CONG. REC. S10100, S10129 (daily ed. Sept. 10, 1996) (Sen. Kennedy stating: "We cannot enhance full faith and credit. We cannot diminish it. It is a constitutional issue, and authority and action by statute cannot affect it."); id. at S10107 (daily ed. Sept. 10, 1996) (testimony of Sen. Kerry); 142 CONG. REC. H7441, H7447 (daily ed. July 11, 1996) (Rep. Conyers claiming that the second sentence only allows Congress to specify how to authenticate acts, records and judgments).
72. 142 CONG. REC. H7480, H7492 (daily ed. July 12, 1996) (statement of Rep. Skaggs).
73. Id. at H7492 (testimony of Rep. Skaggs); see also 142 CONG. REC. H7270, H7276 (daily ed. July 11, 1996) (Rep. Nadler noting that the Full Faith and Credit Clause always allowed for a public policy exception); 142 CONG. REC. H7441, H7446 (daily ed. July 11, 1996) (Rep. Nadler noting that the Full Faith and Credit Clause never required recognition of same-sex marriage by analogizing it to a minor getting married in one state and the marriage not being recognized in another state with a higher minimum age requirement).
74. 28 U.S.C. § 1738A (1996) (requiring enforcement of child custody determinations).
75. 28 U.S.C. § 1738 (1996) (requiring enforcement of child support orders).
76. 18 U.S.C. § 2265 (1996) (requiring full faith for protective orders given to spouse or partner because of domestic violence).
77. See 142 CONG. REC. S10100, S10107 (daily ed. Sept. 10, 1996) (testimony of Sen. Kerry); 142 CONG. REC. H7480, H7496 (daily ed. July 12, 1996) (testimony of Rep. Jackson).
78. 142 CONG. REC. S10100, S10110 (daily ed. Sept. 10, 1996) (statement of Sen. Byrd).
79. See 142 CONG. REC. H7480, H7481 (daily ed. July 12, 1996) (testimony of Rep. Mink); id. at H7489 (testimony of Rep. Moran).
80. U.S. CONST. art. V.
81. See COLEMAN B. RANSOME, JR., CONSTITUTIONAL REVISION IN THEORY AND PRACTICE 16 (1962).
82. 142 CONG. REC. H7480, H7496 (daily ed. July 12, 1996) (testimony Rep. Jackson).
83. 142 CONG. REC. S5931, S5932 (daily ed. June 6, 1996) (letter from Lawrence Tribe to Sen. Kennedy); see also supra note 60 and accompanying text; 142 CONG. REC. S10100, S10102 (daily ed. Sept. 10, 1996) (Sen. Kennedy quoting Cass Sunstein: "This is not about same-sex marriage and homosexuality. This is about punitive damages, default judgments, products liability, everything else under the sun. From the constitutional point of view, this is not fundamentally a same sex marriage act. This is federal permission to some States to ignore what other states have mandated. That is a very large step.").
84. 142 CONG. REC. H7480, H7482 (daily ed. July 12, 1996) (Rep. Frank stating "Every single sponsor of this bill believes as I do that the States already have the right that this bill gives them."); 142 CONG. REC. S10100, S10107 (daily ed. Sept. 10, 1996) (Sen. Kerry stating "There is no single Member of the U.S. Senate who believes that it is within the Senate's power to strip away the word or spirit of a constitutional clause by simple statute.").
85. The sponsors of DOMA often supplied moral justifications for the legislation. See, e.g., 142 CONG. REC. H7480, H7486 (daily ed. July 12, 1996) (Rep. Buyer's testimony); 142 CONG. REC. S10100, S10108-09 (daily ed. Sept. 10, 1996) (Sen. Byrd's testimony).
86. Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1591 (1995) (federal regulation of beer advertising violated the First Amendment).
87. U.S. CONST. amend. X.
88. 116 S. Ct. 1620 (1996); see also 142 CONG. REC. H7480, H7493 (July 12, 1996) (Rep. Canady).
89. See, e.g., 142 CONG. REC. S10100, S10107 (Sept. 10, 1996) (Sen. Kerry stating: "Marriages fall apart because men and women don't stay married."); id. at S10111 (Sen. Boxer encouraging federal support for family services); 1142 CONG. REC. H7480, H7482 (July 12, 1996) (Rep. Frank stating that divorce is the biggest threat to institution of marriage).