A Federal judge in Massachusetts Thursday ruled that the Federal Defense of Marriage Act is unconstitutional. Boston.com story
If you are a “10ther” – a person who believes the 9th and 10th amendments still mean something, this decision may seem to be correct. Definition of what marriage is or isn’t is not an enumerated power of the Federal Government. Like many other things, decisions about marriage have always been defined by the individual states.
The problem is we’re not living in the 1700s. People now rarely live their entire lives in only one state. People look to government to solve their legal disputes. When a married person dies, they look to the rule of law to define how property will be distributed. When a marriage ends, people look to the rule of law to define how property will be distributed and what rights each parent has. When employers with employees living in many states choose to offer benefits to the spouses of their employees, it creates a series of obligations to the insurance company that the rule of law needs to decide.
If married couples lived their entire life in the state where they marry, it would not matter (much) to Utah that people in Massachusetts define marriage differently. People who don’t like the laws of one state have the option of moving to another state. The idea of the Republic is that States are in competition with each other, and States that make bad decisions will fail and those that make good laws will prosper.
But sooner of later, a couple from Massachusetts will move to Utah and then expect that the rules from Massachusetts will be enforced by Utah. The Constitution tried to address this with the “Full Faith and Credit” clause.
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
The second part is what’s important – the Constitution gives to Congress the power to define how far states are obligated to enforce or respect each other’s laws. That’s exactly what FOMA was crafted to do. FOMA defines marriage between one man and one woman for purposes of all Federal laws. It then goes on to say that States are not required to honor marriages issued by another state that are not between one man and one woman (but almost doesn’t prohibit states from honoring each other’s laws on the subject)
To turn this on its head for a moment – imagine there is no “Right to Marriage”. You can’t assert an “equal protection” to a right if there is no right.
What if a state legislature passed a law ending the practice of marriage in that state and made all statutes that refer to benefits or protections created by marriage as null and void? This goes directly against the foundation of civilization as defined by English Common Law back to the Code of Hammurabi.
Where do rights come from?
“What if a state legislature passed a law ending the practice of marriage in that state and made all statutes that refer to benefits or protections created by marriage as null and void? ” A very good question, and a valid one. With the growth of no-fault divorce and the relaxing of adultery laws, it is only a matter of time before someone comes to the conclusion that marriage is obsolete, depriving single people who can’t find a mate of rights. Once a state passes laws declaring themselves “marriage-free” if you will, then things get interesting. Obviously the state couldn’t ban its residents from going out of state to get married (see Loving v. Virginia) but you could see a couple sue over a right to marry, especially regarding federal tax returns. It could, and this is a big stretch, but a favorable court ruling could force the federal government to disregard all marriage as well under the Equal Protection Clause.
Which of course was the objective from the beginning.
Very few gay couples want the responsibilities of marriage – just the benefits of free health care from their spouse, social security “widow” benefits and to “stick it” to the heterophiles. With the “marriage tax” returning when the Bush tax cuts expire at the end of the year, that will create new interesting issues. Can a couple in a Gay Marriage then tell the IRS they aren’t married and file as 2 single people?
When the State is the parent of all children and provides all their needs, quaint little things like inheritance laws, alimony, paternity, property rights, etc… become irrelelant. When all adults collectively are responsible for providing for the needs of all children, then old fashioned ideas like English Common Law lose their purpose in the face of such Progress.