A matter of jurisprudence
“Under the Constitution, the regulation and control of marital and family relationships are reserved to the states.”
U.S. Supreme Court
Sherrer v. Sherrer (1948)
The Defense of Marriage Act is an exception to the rule that a law's title is uninformative about the law's purpose. DOMA's purpose is precisely what its title says. Which is why many conservatives and liberals should be uneasy Wednesday when the Supreme Court hears arguments about DOMA's constitutionality.
Conservatives who supported DOMA should 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.
DOMA, passed in 1996, 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, DOMA's 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.
DOMA's 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.”
Professor Ernest A. Young of the Duke Law School, the principal author of the federalism brief, says the operation of DOMA cannot help but burden states because “federal and state law are pervasively intertwined.” To understand the harm that could be done by an unlimited federal power to define the terms of domestic-relations law, Young recalls when a few states, venturing beyond the national consensus, began experimenting with no-fault divorce. Suppose, Young says, Congress passed a statute refusing recognition, for purposes of federal law, of any divorce where neither party made a showing of fault:
“The couple would continue to be treated as married for purposes of federal income tax, health care programs, and veterans' benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law.”
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.
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.
George F. Will is a columnist for The Washington Post and Newsweek.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Pirates’ outfield may have few defensive peers
- Penguins slip past Sharks, 3-2, in shootout
- Sex-soaked culture faulted for fraternity house parties
- Hempfield infant fights rare disease
- NFL coaches weigh in on Polamalu’s legacy
- McKeesport Area teacher among winners at group’s inaugural Champions of Learning awards dinner
- McKeesport Area student’s prize-winning song about brother helps heal family tragedy’s wounds
- Researchers uncover details to help get GOP candidates elected
- Penguins’ Letang leaves hospital, ‘day-to-day’ with concussion
- Penguins notebook: Five defensemen dress against San Jose
- Starkey: Next frontier for Steelers offense