WASHINGTON — U.S. Supreme Court, Sherrer v. Sherrer (1948): Under the Constitution, the regulation and control of marital and family relationships are reserved to the states.
By GEORGE WILL
The Washington Post
The Defense of Marriage Act is an exception to the rule that a laws title is as uninformative about the laws purpose as the titles of Marx Brothers movies (Duck Soup, Horse Feathers, Animal Crackers) are about those movies contents. The acts purpose is precisely what its title says. Which is why many conservatives and liberals should be uneasy next Wednesday when the Supreme Court hears arguments about its constitutionality.
Conservative supporters should, after 17 years reflection, want the act overturned because its purpose is constitutionally improper. Liberals who want the act struck down should be discomfited by the reason the court should give when doing this.
In 1996 it passed the House 342-67 and the Senate 85-14. It defines marriage for the purpose of federal law as a legal union between one man and one woman.
Because approximately 1,100 federal laws pertain to marriage, its defenders argue that Congress merely exercised its power to define a term used in many statutes. But before 1996, federal statutes functioned without this definition, which obviously was adopted for the defense of marriage against state policies involving a different definition. Before DOMA, an amicus brief submitted by a group of federalism scholars notes, federal law took state law as it found it.
The question now is whether DOMA is necessary and proper for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. This subject is a state responsibility, a tradition established and validated by what can be called constitutional silence: The Tenth Amendment says the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The amicus brief takes no position on same-sex marriage as social policy. Rather, it addresses a question that should obviate the need to address the question of whether DOMA violates the constitutional guarantee of equal protection of the laws. The threshold question is: Does the federal government have the power to define and protect the institution of marriage?
DOMAs obvious purpose is, as the scholars brief says, to reject state governments policy judgments. Its purpose is to endorse, and to some extent enforce, the traditional understanding of marriage. The scholars brief says:
Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the states policy judgments as if it had the same authority to make domestic-relations law as they do. That is the difference between a government with a general police power and a government of limited and enumerated powers.
As the scholars brief says, DOMA shatters two centuries of federal practice by creating a blanket federal marital status that exists independent of states family-status determinations. Federalism, properly respected, enables diversity as an alternative to a congressionally imposed, continent-wide moral uniformity. Allowing Washington to impose such conformity would ratify unprecedented federal supremacy regarding domestic relations, a power without judicially administrable limits. By striking down DOMA by refusing to defer to Congress usurpation of states powers the court would defer to 50 state governments, including the 38 that today prohibit same-sex marriage.
Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.
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