A federal district court judge in Massachusetts has ruled in two separate opinions that the portion of the Defense of Marriage Act of 1996 ("DOMA") signed by President Bill Clinton, which defines "marriage" as between a man and a woman only, is unconstitutional. Gill v. Office of Personnel Management, and Massachusetts v. HHS.
On the "O'Reilly Factor" last night, one of O'Reilly's legal experts - Lis Wiehl - defended the judge's constitutional interpretations, arguing that there is no basis in the Constitution for the federal government to intrude in an area traditionally reserved to the states.
With all due respect to the judge and Ms. Wiehl, I think they misconstrue both the reach of the federal Defense of Marriage Act and how the Constitution should be interpreted in relation to what this law is trying to achieve, although the issue may become moot if President Obama has his way in repealing DOMA altogether.
In the Gill case, Judge Joseph L. Tauro ruled that the federal Defense of Marriage statute violates the constitutional right of married same-sex couples to equal protection under the law. He ruled that the federal law unfairly discriminated against Massachusetts citizens of the same sex who married lawfully under Massachusetts law but were denied access to federal benefits because DOMA mandated that the federal government recognize only those marriages between one man and one woman in determining eligibility for federal benefits. In order to reach this result, Judge Tauro concluded that there was no conceivable set of facts to support a finding that there was a rational relationship between DOMA and a legitimate government objective. Therefore, said the judge:
[DOMA] violates core constitutional principles of equal protection
In so ruling, Judge Tauro dismissed a compelling federal government objective served by the Defense of Marriage Act: to conserve scarce federal resources by defining eligibility for federal benefits based on marital status according to long accepted notions of what marriage has meant under English and American common law based on Judeo-Christian precepts.
Indeed, under the logic of Judge Tauro's equal protection decision, Utah could pass a law allowing bigamy, forcing the citizens of all other states to subsidize families with multiple spouses through their federal tax dollars while they are only permitted one spouse in their own states - a form of discrimination in reverse.
Even beyond that, a Muslim man living in this country who wants to have several wives, which is permissible under Islamic Sharia law, could claim he is being discriminated against by any state or federal law preventing him from freely exercising his religious right to marry as many wives as he chooses. And we all would have to contribute through our federal tax dollars to federal benefits subsidizing his bliss with multiple wives. Where do we draw the line, once we proceed down Judge Tauro's path on equal protection?
Judge Tauro's companion opinion, Massachusetts v. HHS, struck down the Defense of Marriage Act's definition of "marriage" as between only a man and a woman on states' rights grounds. Some conservatives have suppported the judge's reasoning, relying as it does on the Tenth Amendment's reservation of all unenumerated authority to the states:
The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statue is invalid
The problem with this reasoning is that it creates a red herring. If the federal government had passed a law preempting the field of marriage and/or prohibiting any state from defining marriage in terms other than as between a man and a woman, then I think that Judge Tauro's analysis would have merit. But that is not what the federal Defense of Marriage Act does. It simply defines marriage eligibility for federal benefits in a way that is consistent across all states. And it protects those states which do not want to recognize same-sex marriage in their own laws from being forced to extend benefits and privileges to same-sex couples whose marriages are recognized in Massachusetts or in any other state such as Hawaii.
The Full Faith and Credit clause of the Constitution requires each state to honor the "public Acts, Records, and judicial Proceedings of every other State" (Article IV, Section 1). Congress is given express authority in that same section to "prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." (Emphasis added)
In other words, Massachusetts, Hawaii and any other state are free to expand the marriage definition to same-sex marriages within their own borders. But the effect of such an expansive act can be limited by Congress to those states alone and not forced down the throats of other states with a contrary view. That is the essence of protecting states' rights.
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