Why marriage can’t be left to the states

by Jeff Jacoby

October 18, 2004

An issue as crucial as the future of marriage in America deserved more than the three minutes CBS newsman Bob Schieffer allowed it during last week’s debate between President Bush and Senator John Kerry. And it deserved a more thoughtful introduction than Schieffer’s irrelevant question about whether “homosexuality is a choice.” (Do we debate issues of religious liberty by first asking if “religion is a choice?”)

Even so, in their brief exchange on what may turn out to be the most critical social question of the next four years, Bush and Kerry each said something significant.

The president explained why a constitutional amendment is the only option remaining for those who want to preserve the timeless understanding of marriage as the union of a man and a woman. There is already a federal law on the books — the 1996 Defense of Marriage Act — that purports to do just that. “But I’m concerned that that will get overturned,” Bush said. “And if it gets overturned, then we’ll end up with marriage being defined by courts, and I don’t think that’s in our nation’s interests.”

Kerry, who claims to oppose same-sex marriage but who voted against (and harshly denounced) the Defense of Marriage Act, replied that there is no reason to treat marriage as a federal issue. “With respect to DOMA and the marriage laws, the states have always been able to manage those laws. And they’re proving today — every state — that they can manage them adequately.”

Kerry’s call for leaving marriage to the states echoes the old segregationist argument that the federal government had no business interfering with the states’ handling of race relations. Now as then, “states’ rights” is a smokescreen for the protection of something most Americans find objectionable: Jim Crow in the 1950s and ’60s, same-sex marriage today. And just as state sovereignty was not permitted to override the compelling national interest in racial equality, it cannot be allowed to override the compelling national interest in preserving the definition of marriage that Americans have always embraced.

In any event, it simply is not true that the US legal system has always left marriage to the states. In 1967, Virginia’s ban on interracial marriage was ruled unconstitutional in the famous case of Loving v. Virginia. Nine years later, in Turner v. Safley, the Supreme Court refused to uphold a Missouri prison regulation that blocked inmates from getting married. What’s more, as Maggie Gallagher of the Institute for Marriage and Public Policy has noted, “the question whether the basic legal definition of marriage is a national issue or a states’ rights issue was tackled once before and settled, in the 19th century.”

In an essay for The Weekly Standard last March, Gallagher pointed out that between 1862 and 1887, Congress repeatedly passed laws intended to stamp out the practice of plural marriage. The Morrill Act of 1862 made polygamy a crime punishable by prison or a hefty fine. When Mormon-dominated courts in the Utah Territory refused to enforce it, Congress enacted the Poland Act of 1874, transferring jurisdiction over polygamy cases to the federal courts.

After the Supreme Court upheld the Morrill Act in 1879, Congress grew even more aggressive in its determination to keep marriage monogamous. The 1882 Edmunds Act vacated the Utah territorial government, created an independent commission to oversee elections, and made it illegal for polygamists to vote or serve on juries. The Edmunds-Tucker Act of 1887 went further, disincorporating the Mormon Church, seizing its property, requiring wives to testify against husbands, and imposing an antipolygamy oath on Utah voters and officeholders. In 1890, the Mormon Church capitulated and renounced plural marriage for good.

It is because of this “active federal intervention” by Congress and the courts, Gallagher writes, that monogamous marriage remains the law of the land in America today. “There is nothing radical or unprecedented about the idea of a national definition of marriage.”

What has changed in 125 years is that courts can no longer be counted on to uphold the settled understanding of that national definition. Despite Kerry’s claim, the states are not being allowed to “manage” marriage as they see fit. Same-sex marriage is now lawful in Massachusetts only because four unelected judges unilaterally imposed it. Thirty-nine states have passed defense-of-marriage laws, usually by large majorities, but that isn’t stopping opponents of those laws from hunting for judges to strike them down.

It is only a matter of time before a federal judge — perhaps even the Supreme Court — brushes aside the federal DOMA and orders other states to give “full faith and credit” to same-sex marriages from Massachusetts. The only way to prevent the confusion and seething discord such a ruling will lead to is by changing the Constitution. Constitutional change should never be undertaken lightly. But there are few institutions more vital to society’s well-being than marriage.

Bush is right: It is not in our national interest for so grave a question to be decided by judicial diktat. Far better that it be decided openly and fairly, with public debate and the participation of Congress and the states. Anything else would be profoundly undemocratic — and unwise.