The First Circuit Court of Appeals, based in Boston, recently decided against a specific provision of the Defense of Marriage Act (DOMA), specifically the denial of federal benefits to legally married same-sex couples.
The Act was passed in 1996 with broad bipartisan support, including all of Iowa’s elected Congressmen, both Democrat and Republican, and was signed into law by then-President Clinton.
In an interview with an LGBT-oriented magazine, President Clinton said at the time, “I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered.” According to the nation’s political leader, discussing the government’s role in marriage “is divisive and unnecessary.” Clinton also authored the Don’t Ask Don’t Tell (DADT) policy prohibiting LGBT citizens from serving in the military.
Is discussing the rights of this class of American citizen divisive? It does seem to be. But is it unnecessary to have this debate? Apparently not, because here we are 16 years later still at it.
The Circuit Court of Appeals’ decision is the third such judicial action to declare DOMA unconstitutional. The case is working its way up the chain of justice, with the Supreme Court its next and final stop. Only the Supreme Court has the final authority to rule a law unconstitutional.
What’s interesting, however, is that the court deferred on the issue of whether or not the federal refusal to recognize same-sex marriages is just or fair to the couples involved. It did, however, consider an argument of federalism, what conservatives sometimes like to call “states rights”. According to the court:
“DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation–domestic relations and the definition and incidents of lawful marriage”
This should be a conservative’s dream. A federal court has, for once, chosen to keep something out of the hands of the federal government, and firmly in the province of state governments. Just as Iowa is allowed to maintain its tradition of extending civil rights and equality under the law to as many as possible, so North Carolina is allowed to embed discrimination into their justice system. But… I kind of doubt there will be many conservatives hailing this decision.
In the current issue of Reason magazine, columnist Jacob Sullum explains this phenomenon, which he calls “Fair-Weather Federalism“. He quotes a University of Georgia law professor who says:
“One scans American history in vain to find a major figure whose position on states’ rights was not directly connected to his or her position on the underlying political question. When it suits our leaders, they are in favor of broad federal power; when it does not, they claim ‘states rights’.”
Is this the right decision by the Circuit Court? I don’t know. I’d love to hear your opinion.