Tag: Defense of Marriage Act

More from Cato Scholars on the Marriage Cases

This morning the Supreme Court hears oral argument in Hollingsworth v. Perry, the Prop 8 case, previewed in this space yesterday and the topic of much past attention at Cato. Over the past 48 hours Cato scholars and friends have been writing up a storm:

  • An editorial in the Wall Street Journal contends that the issue should be left to the political process. In response, Cato constitutional studies director Roger Pilon says the Journal goes fundamentally astray on (among other things) whether the Equal Protection Clause was meant to apply only to some short list of “protected classes,” and whether the Perry and Windsor cases resemble Roe v. Wade (they don’t).
  • At Reason, Cato’s Ilya Shapiro debates Jonathan Adler on whether federalism provides a useful organizing concept for the issue. Plenty of debate on that topic at Volokh Conspiracy.
  • In articles at Hoover’s Defining Ideas and Ricochet, Cato adjunct scholar Richard Epstein explains why he finds originalism in tension with liberty on the issue, and has some advice for Justice Anthony Kennedy.
  • Last chance to register for Cato’s all-star panel tomorrow with former Republican National Committee head Ken Mehlman (NPR profile), Freedom to Marry founder Evan Wolfson (BuzzFeed profile), and Cato’s Ilya Shapiro (AFF profile). You can also watch live online here, and comment on Twitter at hashtag #CatoEvents.
  • I’ve got another roundup at Overlawyered noting tomorrow’s panel and other upcoming events, and summarizing a panel on related issues held at Cato last week; I also note the paradox in one recent poll in which a non-trivial number of participants took the view both that same-sex marriage is a right under the U.S. constitution, and that states should be left to go their own ways on whether to recognize it.

Republicans and the New York Marriage Law

Since New York passed a law extending marriage to same-sex couples, Republican presidential candidates have been mostly silent. But not Rep. Michele Bachmann, who has had a long and strong interest in gay rights issues. In an interview on Fox News Sunday she endorsed both New York’s Tenth Amendment right to make marriage law and the federal government’s right to override such laws with a constitutional amendment, confusing host Chris Wallace:

WALLACE: You are a strong opponent of same-marriage. What do you think of the law that was just passed in New York state—making it the biggest state to recognize same-sex marriage?

BACHMANN: Well, I believe that marriage is between a man and a woman. And I also believe—in Minnesota, for instance, this year, the legislature put on the ballot for people to vote in 2012, whether the people want to vote on the definition of marriage as one man, one woman. In New York state, they have a passed the law at the state legislative level. And under the 10th Amendment, the states have the right to set the laws that they want to set….

WALLACE: But you would agree if it’s passed by the state legislature and signed by the governor, then that’s a state’s position.

BACHMANN: It’s a state law. And the 10th Amendment reserves for the states that right.

WALLACE: All right. I want to follow up on that, because I’m confused by your position on this. Here’s what you said in the New Hampshire debate. Let’s put it on.

(BEGIN VIDEO CLIP)

BACHMANN: I do support a constitutional amendment on marriage between a man and a woman, but I would not be going into the states to overturn their state law.

(END VIDEO CLIP)

WALLACE: That’s why I’m confused. If you support state rights, why you also support a constitutional amendment which would prevent any state from recognizing same-sex marriage?

BACHMANN: Well, because that’s entirely consistent, that states have, under the 10th Amendment, the right to pass any law they like. Also, federal officials at the federal level have the right to also put forth a constitutional amendment….

WALLACE: My point is this, do you want to say it’s a state issue and that states should be able to decide? Or would like to see a constitutional amendment so that it’s banned everywhere?

BACHMANN: It is— it is both. It is a state issue and it’s a federal issue. It’s important for your viewers to know that federal law will trump state law on this issue. And it’s also—this is why it’s important—

WALLACE: And you would [sic] federal law to trump state law?

BACHMANN: Chris, this is why it’s so important because President Obama has come out and said he will not uphold the law of the land, which is the Defense of Marriage Act. The Congress passed the Defense of Marriage Act and Bill Clinton signed it into law, to make sure that a state like New York passed a definition of marriage other [sic] one man, one woman, that other states wouldn’t be forced to recognize New York’s law….

WALLACE: So, just briefly, you would support a constitutional amendment that would overturn the New York state law?

BACHMANN: Yes, I would. I would. That is not inconsistent, because the states have the right under the 10th Amendment to do what they’d like to do. But the federal government also has the right to pass the federal constitutional amendment. It’s a high hurdle, as you know.We only have 27 amendments to the federal constitution. It’s very difficult. But certainly, it will either go to the courts, or the people’s representatives at the federal level.

Congratulations to Chris Wallace for his tenacious questioning. Presumably the way to understand Bachmann’s position is that she thinks states have a Tenth Amendment right to make their own laws in any area where the federal government doesn’t step in, and she supports a federal law overriding state marriage laws. That includes the Defense of Marriage Act, whose Section 3 says for the first time in history that the federal government will not recognize marriage licenses issued by the states. And it also includes a federal constitutional amendment to prohibit states from implementing equal marriage rights for gay couples.

Bachmann is not the only Republican who should be asked about the tension between support for the Tenth Amendment and support for federal laws and amendments to carve exceptions out of the Tenth Amendment. This month George Will has praised two Texas Republicans: First, Senate candidate and former Texas solicitor general Ted Cruz, whom he called a “limited-government constitutionalist” and who wrote a senior thesis at Princeton “on the Constitution’s Ninth and 10th amendments. Then as now, Cruz argued that these amendments, properly construed, would buttress the principle that powers not enumerated are not possessed by the federal government.” And second, Governor Rick Perry, who “was a ‘10th Amendment conservative‘ (‘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’) before the Tea Party appeared.”

Cruz boasts on the same page of his website of his support of both the Tenth Amendment and DOMA. Does he really think, as a staunch defender of the Tenth Amendment, that the federal government should override the marriage law of the great state of New York? Perry may be a consistent Tenth Amendment conservative. In his book Fed Up! Our Fight to Save America from Washington he makes his opposition to gay marriage more than clear. But he does write, “Crucial to understanding federalism in modern-day America is the concept of mobility, or the ability to ‘vote with your feet.’ If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas. If you don’t like medical marijuana and gay marriage, don’t move to California.” And an NPR interviewer reported:

States should be free to make decisions regulating such things as taxes, marijuana and gay marriage, Perry says.

“If you want to live in a state that has high taxes, high regulations — that is favorable to smoking marijuana and gay marriage — then move to California,” he says.

Now that a large state has made national headlines by passing a gay marriage law—without any prodding from the judiciary—more political candidates, from President Obama to his Republican challengers, are going to be pressed to make their positions clear on the issue of marriage equality itself, on federalism and the powers of the states, and on the lawsuits that are moving through the courts.