David B. Rivkin Jr. and Lee A. Casey, prolific conservative lawyer‐writers, have an op‐ed in the Wall Street Journal deploring President Obama’s decision not to defend the constitutionality of Section 3 of the Defense of Marriage Act. They write:
DOMA posits that the definition and regulation of marriage has always been a state issue.…DOMA recognizes and protects the unique constitutional role of the states in deciding these issues.
And the subhead, which of course they didn’t write and may not have seen, emphasizes,
DOMA leaves the issue of gay marriage to the states, which is exactly where it belongs.
But there’s a problem here. As they well know, Section 3 of DOMA is the most controversial part, and it precisely does not leave marriage to the states. It says:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
That is, the federal government for the first time said in 1996 that it would not recognize marriage licenses lawfully issued by the several states but rather would override state decision‐making on marriage in favor of a uniform national rule as it pertains to taxes, immigration, benefits, and other federal issues. Surely that was an unprecedented intervention into state authority over marriage (save for the Loving decision that barred the states from banning interracial marriages).
And also, as the authors know, the very first sentence of Attorney General Holder’s letter to Speaker Boehner read, “the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same‐sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.” Yet the article, deploring the administration’s action, ignored Section 3, the precise section of DOMA at issue.
There’s a respectable federalist case for Section 2 of DOMA, which guarantees that no state will have to recognize a same‐sex marriage made in another state. (There’s also a respectable constitutional case for applying the logic of the Loving case to the question of gay couples seeking to marry, as Cato chairman Bob Levy argued in the Washington Post.) But Section 3 of the act, the section that Obama and Holder consider unconstitutional, is not federalist, it is centralist. Rivkin and Casey should at least have addressed that point, rather than criticizing the president by dodging the actual issue at stake.
Footnote: Rivkin and Casey have done noble work recently in defense of limited government and federalism with regard to President Obama’s health care law. And in 2006 they warned conservatives against taking marriage law out of the state legislatures and enshrining rules in state constitutions. It’s too bad they didn’t bring the same acuity to their analysis of DOMA and the president’s bold but narrow decision.