Last week, Vermont’s state legislature expanded the state government’s definition of marriage to include same-sex couples. Vermont is not the first state in the country to recognize same-sex marriage, but it is the first to do so through the democratic process. As I’ve said before, if I had my druthers the government would not forcing any definition of marriage (progressive or conservative) and would not be acting as gatekeeper to what is properly a social and religious institution. But since that’s not going to happen, I see a strong fairness argument for a more inclusive definition of marriage, and I see growing acceptance of same-sex couples as a very positive social trend, but I strongly prefer changes in marriage law to happen through the democratic process rather than the courts.
There are now four states in the US that accept same-sex marriage, and ten other states and DC have some form of civil unions or domestic partnerships for same-sex couples. 35 states have neither same-sex marriage nor civil unions.
In 1996, Congress passed the Defense of Marriage Act (DOMA), which states that the federal government does not recognize same-sex marriages and that no state is required to recognize a same-sex marriage performed in a different state. At the time, no state recognized same-sex marriage, civil unions, or domestic partnerships, but a state court decision in Hawaii looked likely to lead to recognition of same-sex marriages there — the goal of DOMA was to “quarantine” what then appeared to by an outrageous outlying court decision to the state in whose courts it occurred. It made some sense in that context, but it has long-since been overtaken by events. Recognizing same-sex marriages or not is currently a legitimate exercise of federalism, and if current trends in public opinion continue, we’re a decade or two away from the states not recognizing same-sex marriage being the outliers.
In keeping with the principles of federalism, Congress should repeal DOMA and replace it with the following:
- The federal government should treat a couple as married (for the purposes of taxes and social security) if the state in which they reside recognizes them as married or as being in a civil union or domestic partnership which is marriage in all but name.
- The federal government should not recognize plural marriages. Not that any state currently recognizes them or seems likely to in the near future, nor that I have anything in principle against plural marriages, but the priviliges and benefits that are granted to married couples by current law (discriminating against unmarried couples, bachelors, and divorcees alike) do not scale well. If and when states do start recognizing plural marriages, federal law concerning the priviliges of marriage would need to be significantly revised before extending federal recognition.
- Civil unions and domestic partnerships are portable between states which recognize them — e.g. a couple which gets a civil union in Connecticut and moves to Washington State is treated by Washington as if they have a Washington domestic partnership.
- Same-sex marriages are portable to civil unions and domestic partnerships in states that recognize the latter but not the former — e.g. a same-sex couple that gets married in Vermont and moves to Connecticut is treated by Connecticut as if they have a Connecticut civil union.
- No state is required to recognize a marriage which doesn’t meet its definition of marriage.
- But even if a state does not recognize a marriage or civil union, its family courts must take marriages and civil unions from other states into account when deciding custody cases. For example, if a gay couple gets married in Vermont and has a child (through adoption, surrogacy, or sperm donation), then years later has a falling out and one parent moves to Arizona with the child without the other parent’s consent, Arizona courts must enforce the other parent’s rights as a parent.
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I love #6 – The will of the citizens of one state trumps the will of the citizens of another.
You don’t want Congress to stay out of marriage. You want Congress to meddle in marriage in a way you approve of.
Without #6, the will of the citizens of one state still trumps the will of the citizens of another. Taking the example I used in the post, with #6 the will of the citizens of the states where both parents and the child originally lived dominates, but without it the will of the citizens of whichever state the dissatisfied parent chooses to move to dominates.
Either way, one state’s will trumps another. Congress needs to choose which way — that’s why Article IV of the Constitution contains the Full Faith and Credit clause.
No, not in this case. For example in McElmoyle v. Cohen the Supreme Court found that out-of-state judgments are subject to the laws and procedures of the states in which they are enforced, notwithstanding any priority accorded in the states in which they are pronounced. In this particular case; South Carolina can’t force Georgia to recognize certain court judgments
So, the Full Faith and Credit Clause doesn’t read exactly as you’d wish it to. Indeed, the DOMA itself is a sterling example of this!
Again, my point is this: You don’t want Congress to stay out of marriage. You want Congress to legislate marriage in a way you agree with.
I either want congress to stay out of marriage or congress to legislate marriage in a way approve of.
I don’t disagree. As I said in my reply, Congress needs to set rules for what happens when state rules clash with each other. Both DOMA and my proposed revision specify how the FFC clause should apply to marriage.
Where did I say I wanted Congress to stay out of marriage? I do want Congress to give the states a large amount of leeway, which is why I’m proposing this rather than a federal law uniformly recognizing gay marriage, but Congress needs to be involved at least to the extent that it sets reasonable and just procedures for what happens when different state laws clash. But I’ll turn it back on you and say that by your own argument, you also want Congress to legislate marriage in a way you agree with.
Where did you say you wanted Congress to stay out of marriage? How about:
“As I’ve said before, if I had my druthers the government would not forcing any definition of marriage (progressive or conservative) and would not be acting as gatekeeper to what is properly a social and religious institution.”
And then you go to say Congress needs to rewrite the DOMA! And not in a way to give states “a large amount of leeway” because your point 6 ENSURES that states which allow gay marriage will be able to force those that do not to comply to one degree or another. Leeway does not exist here.
To address this: “But I’ll turn it back on you and say that by your own argument, you also want Congress to legislate marriage in a way you agree with.”
Hardly at all! I genuinely want Congress and the Federal Government out. As you note, Vermont is the FIRST state to allow gay marriage legislatively. Yet many more states do because of judicial fiat.
No, I want the people to be heard. But the gay lobby and so-called progressives seem to want this matter decided in the courts alone.
If the will of the people WERE HEARD Vermont would be alone in allowing gay marriage. Instead, you support the courts overruling the people and claim you want the people to be heard.
Why do you want the DOMA to be rewritten when, by your own admission, Vermont is the only state in the union that allows gay marriage by the will of the people? It seems to me the remaining 49 states like marriage right where it’s at – and the DOMA reflects this.
Gay marriage is not wanted by the people of this nation. Every time it comes up for vote by the people it’s voted down (Vermont now notwithstanding). The only way to get what you want is by intervention by courts and Congress. You say you don’t want Congress involved. Okay, you want it decided by the courts then because you CLEARLY do not care what the people think.
I’m not involved so far but, yes, I don’t care what the people think. Gay marriage should be legal.
Kevin, I specifically said “government”, not “federal government”. My first choice would be to see state governments completely out of marriage as well. And my very next sentence after that begins “But since that’s not going to happen, I see a strong fairness argument for a more inclusive definition of marriage”.
To clarify, my first choice would be for no government, state, local, or federal, to make itself a gatekeeper for marriage. If you want to get married, you have a ceremony, exchange vows, and sign a private contract. The definition of marriage would be highly informal, depending on what private individuals and organizations are seperately willing to acknowledge as marriage. The government wouldn’t know or care whether or not you’re married because the government wouldn’t grant any special rights or privileges to married couples as it does now. The only time it would matter would be if you go to court over child custody issues, in which you could introduce records of your private marriage vows as evidence.
I am in a very small minority in preferring that system to the current system where governments define officially sanctioned marriage and grant a number of privileges to married couples. I accept the judgement of the overwhelming majority of my fellow citizens and move on to the question of how government should define marriage.
If governments insist on defining marriage, I prefer the definition be inclusive rather than exclusive. In the current social environment, excluding same-sex couples from government recognition of marriage is discriminatory and insulting. If there’s a ballot proposition in California in the next election to change the law and the state constitution to recognize same-sex marriage, I plan on voting for it.
I don’t like courts overruling legislatures on the definition of marriage. If governments insist on defining marriage, I think it better that the definition of marriage reflects that of the majority of the population. But I also believe in the rule of law, and our system of government gives courts the power to declare laws unconstitutional. Sometimes they use this power wisely, other times they abuse this power, and yet other times they obey the law with unfortunant results. But no matter how they use it, once the courts have ruled, our system of government requires that we either follow the ruling or overrule the courts by revising the constitutions. In California, we did (very narrowly) vote to amend our constitution to overrule the courts. Connecticut did not attempt to amend their constitution, and Massachusetts tried and failed. Iowa hasn’t had time to make the attempt yet.
The next question is what happens now that we have states that, whether we approve of the process by which it happened or not, have different definitions of marriages. Under current law, Congress has actively involved itself to quarantene gay marriage to the states which recognize it. I’d prefer Congress involve itself more even-handedly (and, yes, more towards the outcome I personally prefer).
I’m breaking up the question of federal treatment of marriage into three categories. Federal privileges for married couples should follow whatever definition of marriage is the law in the state in which a couple resides rather than being uniformly withheld to same-sex couples. State privileges for married couples should continue to be up to individual states. And in the case covered in point 6, when a family law dispute spans multiple states, one parent should not be able to escape obligations they voluntarily assumed to the other parent by taking their child to a state with a different definition of marriage.
This is not an abstract hypothetical. In Miller-Jenkins v. Miller-Jenkins, the just outcome was reached through a technicality, despite DOMA (the case was originally adjudicated in Vermont, so Virginia courts held the Vermot ruling to be binding). But if the case had proceeded in a different way, the initial Virginia ruling that Janet had no rights to visitation or custody would have stood. Do you really think it’s right for one half of a couple that decided to raise a couple together to be able to unilaterally cut the other out of their child’s life by moving across state lines?
So far as I can see, the DOMA is unconstitutional. I don’t say that because my religion says so, I’m actually saying it because if you’re going to be precise about the Constitution, it’s clearly illegal.
Yes, I grant, I’m “gay-friendly” in this area. Because I think we’re all sinners. The Church doesn’t have to recognize these relationships. In fact, the Church shouldn’t. But the law? The law should. No matter if it seems sinful to you, these people deserve the protection of law.
Oh, and by the way? I’ll say what I’ve said a million times:
The Defense of Marriage constitutional amendment? It’ll never pass. Not in a million years.
Kevin D.
In your arguments against point #6, you said “Leeway does not exist here.” The courts you so despise do have leeway here because the phrase “courts must take marriages and civil unions from other states into account” simply says “take…into account”. This means that a judge would allow, as evidence, a marriage certificate that may or may not be valid in his/her state.
The courts are usually where someone goes with a grievance. Laws are written within particular frameworks and must obey certain rules, most of these are specified in the relevant constitution. If the legislature passes an illegal law, it is the responsibility of the courts to strike it down. Article III, Section 2 of the U.S. Constitution states “judicial power shall extend to all cases…arising under this Constitution”. You may not like that judges made decisions that go against your personal morals, but they were doing their job.
Manaikes’ point stands though, this is not about how we got here, but about what we do now that we are here. Decades years ago, this argument was about the color of one’s skin; now it’s about the gender of one’s partner.
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