Despite the fact that the tide has firmly turned away from social conservatives on the issue of gay marriage, Republicans have doubled down on their support for the 1996 Defense of Marriage Act (DOMA). Now, Republican DOMA supporters face another front on their losing battle to keep homophobia enshrined in the law, this time it’s the states.
Traditionally states’ rights arguments were reserved for social conservatives trying to beat back civil rights legislation, abortion rights, expanded health care access–places where the federal government was acting to expand the scope of equality and liberty protected and recognized under the law. But now at least three states where members of the clergy and justices of the peace marry gay couples are arguing that it’s a violation of states’ rights for the federal government to “unmarry” those couples under DOMA. New York, Vermont and Connecticut have all made the argument in amicus briefs filed in a New York case that involves a lesbian widow.
The states argue the federal government had no right to demand $350,000 in estate taxes when Edie Windsor’s partner died because of the federal designation of marriage as a union between one man and one woman. That estate tax liability would not have happened under a marital tax deduction that lest other married couples pass their assets to their spouse without penalty. There have been a handful of cases striking at parts of DOMA, but only one has reached the issue of whether of same-sex marriage in the context of federal power.
According to the National Conference of State Legislatures, 38 states have passed legislation barring same-sex marriages while six states, including the three involved in the New York case, currently allow such unions. The legal challenges to DOMA are still pending and the Supreme Court is likely to weigh in on the constitutionality of the bill within the next year or two, but it is heartening to see states standing up for fundamental notions of fairness and equality under the banner of states’ rights for a change. And the New York case illustrates the fundamental hypocrisy of the DOMA supporters. For them, federalism is a one-way street that leads to evangelical domination of social policy and governance.
Thankfully that is not how the law works, and on the issue of marriage and whether or not states or the federal government have the authority to regulate it, the matter is all but settled. That fact won’t stop conservatives from pushing the issue to a Supreme Court they view as sympathetic to the cause, nor will it stop history from judging them accordingly.
Photo from fibonnaci blue via flickr.