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Marriage equality: is it a federal issue or a state issue?

Marriage equality

By Jacob Combs

Over the weekend, I wrote about President Obama’s Friday interview with MTV, during which he responded to a question about marriage equality with the statement, “I think for us to try to legislate federally into this is probably the wrong way to go.”  As I mentioned in my piece, the President’s words marked no shift in his administration’s policy and matched statements that he had made before on the issue, but I also highlighted an ABC News report which read (incorrectly), “Asked if he would use his second term as a platform to overturn the Defense of Marriage Act, the president demurred, saying he viewed it as an issue for the states to decide.”

The title of the post is intentionally misleading: marriage equality, of course, is both a federal and a state issue.  But this fact is often glossed over in the mainstream media’s coverage, leading to confusion (and sometimes contradiction) on things like DOMA, state marriage laws and, of course, federal lawsuits regarding both.  In this post, I will thoroughly lay out which aspects of the marriage equality movement pertain to federal law and which pertain to state law, explaining the consequences that this federal/state split have for marriage equality gains in both the judiciary and the legislature.

Marriage law in the United States

From the very beginning, the United States has been exactly what its name suggests: a union of individual state governments, each with its own laws and public policy.  When the Founders laid out the system through which these states would come together and function as a federal government, they were careful to delineate which governmental powers were reserved for the federal government and which were the sole province of the states.  Only the federal government can declare war, for instance; police power, on the other hand, is substantially reserved as a responsibility of the states.

Marriage law has historically been a province of state law in the United States.  Marital and family law, in fact, fall under the broad umbrella of the states’ police power authority, as the Supreme Court recognized in the 1979 case Hisquierdo v. Hisquierdo, in which it ruled that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”  It was up to the states to decide whom they wished to marry and whom they did not, and as a result marriage laws differed greatly from state to state on such characteristics as the age at which individuals could marry and, unfortunately, the racial composition of the couple.

The federal government, on the other hand, has historically deferred to the states in determining whether not a couple is married when it decides whether to treat that couple as married or unmarried for the purposes of federal benefits.  In certain instances, the federal government has imposed additional requirements on married couples seeking to qualify for certain federal benefits (for example, the federal government scrutinizes marriages in which one partner seeks a change in immigration status for the other partner in order to make sure the marriage is not a sham), but for the most part, it has left the decision of who is married and who is not to the states to decide.

Marriage equality in state law

Because the states get to decide who can marry, it is up to each individual state to choose whether or not to extend those rights to same-sex couples.  In some states, gay and lesbian couples have been given equal marriage rights by the legislature (for example, Vermont, New Hampshire, Maine and New York).  In others, such as Massachusetts, Connecticut, Iowa and California, these rights have been extended by a state court.  (The legislatures of both Washington and Maryland have also voted to extend equal marriage rights to same-sex couples, but those laws will only go into effect if they are approved by a vote of the people this November.)

Of course, as the states giveth, so may they taketh away.  Maine’s marriage equality law was placed on hold and then later voted down by a ballot initiative; California’s Supreme Court decision requiring marriage equality was reversed by a vote of the people in favor of Proposition 8.  States can either ban marriage equality by statute (that is, under a normal law), which can be held unconstitutional by a state court (as was the case in Iowa and California, for example), or they can amend the state constitution to prohibit marriage equality, as Prop 8 did.  Such constitutional amendments cannot be overturned by state courts, since those courts are bound to base their decisions on the text of those state constitutions.

State marriage equality laws in federal court

This is where marriage equality starts to become a federal issue.  Under the Supremacy Clause, the U.S. Constitution is the highest law of the United States, which means it supersedes the state constitutions.  Whereas state courts do not have the power to modify state constitutions, federal courts do–that is, they can invalidate a section of a state constitution if they find it to be in violation of the U.S. Constitution.

This is exactly what happened in the Prop 8 case (originally called Perry v. Schwarzenegger and now called Hollingsworth v. Perry).  The American Foundation for Equal Rights filed a suit in a Northern California federal district court arguing that Proposition 8 violates gay couples’ equal protection and due process rights under the federal constitution.  Both the district court and the Ninth Circuit Court of Appeals agreed, striking down the law.  That case is now before the Supreme Court, the nation’s highest federal court, which will have the final say on the law should it choose to take up the appeal.

Two other challenges to state marriage laws are currently pending in federal court.  In the first, Jackson v. Abercrombie, a federal district court in Hawaii ruled that the state’s decision to limit marriage to heterosexual couples was constitutional.  That challenge in now before the Ninth Circuit.  The other case, Sevcik v. Sandoval, is currently awaiting a decision by a district court judge in Nevada.


And then, of course, there is DOMA, the Defense of Marriage Act.  DOMA is perhaps the most misunderstood aspect of marriage equality law in the United States, but it is nevertheless quite straightforward.  In 1993, the Hawaii Supreme Court handed down a decision in a case called Baehr v. Miike holding that the state must demonstrate a compelling interest in limiting marriage to heterosexual couples only.  Opponents of marriage equality worried that the Baehr decision would lead to Hawaii offering marriage to same-sex couples, and that the other states in the union would then be required to recognize such marriages under the Full Faith and Credit Clause of the U.S. Constitution, which holds that “[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”

In 1996, Congress passed DOMA and President Clinton signed the bill into law.  The law has three sections, the first of which explains its name.  The second reads, “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”  Section 2 was thus a move by marriage equality opponents to keep the Full Faith and Credit Clause from being used by gay couples to force states to recognize their out-of-state marriages.

Section 3 of DOMA, on the other hand, reads, “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.”  This section is the crucial one, since it broke from established precedent and established, for the very first time, a uniform, federal definition of marriage.  It’s worth noting that there were no states with marriage equality in 1996 when DOMA was passed, so the law had no immediate effect at all, but when Massachusetts became the first state to offer equal marriage rights to same-sex couples in 2004, the federal government was mandated to treat those couples as unmarried for the purposes of federal law and federal benefits.

Because DOMA is a federal law, it can only be overturned by Congress or the federal courts.  On the first count, there is currently a proposed bill in Congress, called the Respect for Marriage Act, which would repeal DOMA.  The law was approved by the Senate Judiciary Committee on a party line 10-8 vote in November 2011, but is unlikely to move any further in either house given the current make-up of Congress.  In terms of the courts, DOMA has already been ruled unconstitutional by several district courts and two circuit courts, most recently the Second Circuit, based in New York.  Four different DOMA cases have been petitioned to the Supreme Court, which is likely to take up at least one of the cases and rule on the law’s constitutionality by next June.

It is important to recognize what kind of an impact the repeal or overturning of DOMA would have.  An end to DOMA would not mean that all states in the union would suddenly have marriage equality.  Just as importantly, it would not mean that states without marriage equality would be forced to recognize marriages from other states.  The various challenges to DOMA making their way through the federal courts are only directed at Section 3, the definition of marriage, and not Section 2.

Moreover, as the New York Times pointed out in 2004, when then-President Bush was calling for a constitutional amendment against marriage equality, states are free to choose which out-of-state marriages they recognize and which they do not.  ”No state has ever been required by the full faith and credit clause to recognize any marriage they didn’t want to,” Northwestern law professor Andrew Koppelman told the Times.  When the Supreme Court ended bans on interracial marriage in 1967 with the decision Loving v. Virginia, it did not require these states to recognize other states’ interracial marriages; rather, it struck down every state’s ban on such marriages.  That’s a nit-picky legal point, but an important one.

 About that constitutional amendment…

As President Bush did in 2004, Republican presidential candidate Mitt Romney supports an amendment to the U.S. Constitution that would define marriage as solely between a man and a woman, according to his website.  Such an amendment would essentially become a kind of super-DOMA, and it would be out of the reach of both Congress and the federal judiciary, modifiable only by another constitutional amendment.  This would be another way of federalizing marriage equality law in the way that DOMA currently does.  The effect of such a constitutional amendment on the thousands of same-sex couples who have already entered in marriages in the seven states which have had marriage equality (along with the District of Columbia!) is unclear.


With all these elements in play, it’s not surprising that the American public and sometimes the very reporters who cover these issues get confused about the federal/state divide in marriage equality law.  What’s important to remember is this: it’s up to the states to decide who can and can’t get married.  DOMA represented an unprecedented intrusion of the federal government on a matter that has historically been reserved to the states, and it will likely by struck down by the Supreme Court.  When that happens, it will be up to the states to decide whether or not same-sex couples can get married, and whether or not they want to recognize out-of-state marriages for same-sex couples.  The type of nationwide marriage equality law referred to in the question to President Obama during the MTV interview would be constitutionally suspect for the same reason that DOMA is.  It should be in the states, and the states alone, where the debate about marriage equality continues.


  • 1. Seth from Maryland  |  October 29, 2012 at 10:55 am

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  • 2. Seth from Maryland  |  October 29, 2012 at 11:02 am

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  • 3. Seth from Maryland  |  October 29, 2012 at 11:06 am

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  • 4. Steve the Second  |  October 29, 2012 at 11:17 am

    It should really be a federal issue altogether. It's beyond absurd in this day and age for every state to have their own marriage laws and be free to ignore any other state when they don't like something. That may have made sense 200 years ago when there was little mobility and most people didn't travel much. Today it's nothing but a highly impractical anachronism.

  • 5. Eric  |  October 29, 2012 at 12:05 pm

    Why? The system has worked quite well for heterosexuals. Would you rather we have no marriage equality until the entire country is ready for it?

  • 6. Mark Mead-Brewer  |  October 29, 2012 at 12:24 pm

    Well, it HASN'T worked well for Hetros over the years either. States can and do honor certain 'marriages' and not others. In some states there is commom law, while in others there is not….so even for straights there are places that do not honor their relationships.
    That is just one example…there are others
    My point is, that the states need to get more in line with one another, and this should be done on a Federal level

  • 7. Mike in Baltimore  |  October 29, 2012 at 4:40 pm

    "In some states there is commom law, while in others there is not…"

    The recognition of a marriage or not is NOT the same as recognition of a form of marriage or not.

    I'm only aware of a Wisconsin state law not recognizing certain and specific marriages from Tex-ass (where the spouses were 'underage' according to Wisconsin. In all other cases I'm aware of, every state recognizes the marriage that have taken place in other states, with the exception of same-sex marriages.

    As an example of recognition of marriages conducted in other states, even if the type of marriage is illegal in the state:

    In Pennsylvania, it is illegal for first cousins to get married. It is legal in Maryland. Several residents of Pennsylvania go to Maryland to get married in a 'wedding chapel', then move back to Pennsylvania as a married couple, a marriage recognized by Pennsylvania.

    Common law marriage was legal in Indiana until the mid-1950s. Even now, though, anyone who had been 'married' in a common law marriage in Indiana before the law changed is still considered 'married', even if they still live in Indiana or have moved to Florida, Arizona, etc, in the meantime.

  • 8. Jamie  |  October 29, 2012 at 6:31 pm

    There have been states that tried to ban marriage for deadbeat dads, rapists, and murderers. The Supreme Court upheld the rights of all those groups to get married.

  • 9. Kim  |  October 29, 2012 at 11:24 am

    Add to this the mess that is created when a same-sex couple requests federal marriage rights based on the fact that they have a valid heterosexual marriage as in some cases where one of the partners is transsexual. Texas for example determines you sex based on your birth certificate, regardless of subsequent changes. One such case currently plays out in the immigration courts, potentially affecting DOMA as it creates two groups of same-sex couples, whose with federal marriage rights and those without, solely based on where they got their marriage license.

  • 10. RepublicanLutz  |  October 29, 2012 at 1:58 pm

    Outside of a few commenters, I don't really see many on the pro-gay side pushing for a federal law or executive order in this area (both of which would be unconstitutional). That is why I take issue with the President presenting the matter as something for the states.

    Let me be clear. I understand the intricacies of the DOMA battle. And I entirely get the careful word game that he probably is playing here, but it doesn't work because the issue that everyone is really discussing right now when it comes to state's rights is the issue of the constitutionality of state bans on SSM and whether the SCOTUS will say to the 50 states, "Yes, if you have straight marriage, you have to permit gay marriage as well." That debate is also what is driving most pro- and anti-gay forces right now. The DOMA cases, as you said, are based on a different state/federal disagreement, and yes, DOMA is especially abhorrent for many reasons, but there is no way that can be easily explained in a short article. What the general public takes away from the President's words is something that is unhelpful in the context of the debate that the general public is actually having.

    That having been said, I appreciate the support the President has given on this issue. I don't mean to minimize his extremely helpful support on the main subject of marriage equality. I just disagree with his approach on this particular battle of the marriage equality war.

  • 11. SeattleRobin  |  October 30, 2012 at 1:59 am

    But the President's approach is the correct one within the context of what was asked in the interview. As the article points out at the end, trying to pass a federal law mandating that all states allow same-sex marriage is just as bad as passing a federal law that refuses to recognize legal, state-sanctioned marriages. In either case it's not the federal government's role to do such a thing.

    If Obama had been asked, "Do you believe the Supreme Court should recognize the fundamental right of all citizens to marry, including being able to marry a same-sex partner" and he answered with no, THEN it would be very appropriate to disagree with his approach. But he wasn't asked that question. It is the key issue in all of this. A constitutionally protected right is the only path to full marriage equality in all states.

  • 12. Larry  |  October 29, 2012 at 2:22 pm

    It's unsatisfying to hear Obama say that he supports same sex marriage, and if his state was holding a vote he'd vote for it, but that each state can do what it wants. But I think the general public only focuses on the very first part, that he supports same sex marriage, without any of the states' rights nuance.

    Aside from same sex marriage (and interracial marriage 50 years ago) is there any kind of marriage 1 state will conduct and another won't recognize? I can't think of any examples of 1 state refusing to recognize another state's marriage between 1st cousins or between two 16 year olds. Would a state still refuse to recognize a another state's common law marriage?

  • 13. john  |  October 29, 2012 at 5:03 pm

    Must be great for a same-sex married couple whose job transfers them to a state where insurance benefits are provided only to "married" couples legally recognized by that state.

  • 14. Straight Dave  |  October 30, 2012 at 5:40 am

    It's even worse than that – it also affects civil unions. A few years ago a NJ couple in a civil union was involuntarily relocated to Idaho. Guess what happened? The same company that provided state-mandated benefits in NJ took them away because "Idaho didn't </>require them", even though they were screwing their own employee. ID didn't prevent those benefits, either, but the company took advantage of the leeway they had to do the absolute worst possible thing.

  • 15. Steve the Second  |  October 30, 2012 at 7:08 am

    There is another absurd consequence: you usually can't even get a divorce in other states. There is no reason why states shouldn't recognize all marriages for the purposes of divorce (though residency requirements make sense in that case). Instead they act like petulant children and refuse that too. You'd think an anti-gay state would like to divorce gay couples.

  • 16. Mike in Maryland  |  October 30, 2012 at 2:51 pm

    "You'd think an anti-gay state would like to divorce gay couples."

    They don't, because that would mean the court (and by extension, the state) implicitly recognizes same sex marriage.

    In Maryland (prior to the passage of the law allowing marriage equality), the Attorney General declared that Maryland would recognize out of state same sex marriages. Several people in the state legislature wanted to challenge the AG's declaration, but the state courts allowed a divorce of a same sex couple to proceed (that decision appealed to the state's highest court, which turned the appeal aside), thus implicitly stating that the AG's declaration was legal and still in effect. Many Marylanders have been taking advantage of the lack of residency requirements in DC to get married there, then going to their homes in Maryland as legally married same sex couples.

  • 17. Steve the Second  |  October 30, 2012 at 7:43 pm

    They could easily recognize it for divorces only and nothing else.

  • 18. D.Nollmeyer  |  October 30, 2012 at 12:54 pm

    How can AFER win a case against Prop 8 in California baEsed on the EQUAL PROTECTION AND DUE PROCESS clause of the 14th Amendment if the goal is a 10th Amendment states rights nission?

    Is same sex marriage enshrined in the 14th Amendment or not?

  • 19. Lymis  |  October 31, 2012 at 4:23 am

    Loving v Virginia declared marriage to be a fundamental right of all US citizens. It would follow that, being citizens, same-sex couples would have the same right to choose the spouse of their choice.

    It doesn't need to conflict with the 10th amendment idea that the states are the ones who regulate marriages. There is a distinction between setting the conditions under which one marries and denying it categorically – so same sex first cousins or 16 year-olds could be prevented from marrying by a specific state without that state being able to categorically deny a gay or bi person the right to marry anyone of the same sex.

    Right now states can regulate who, how, and when straight couples can marry. This would be no different.

  • 20. Steve  |  October 31, 2012 at 6:15 am

    Just because Congress can't legislate marriage equality even if they wanted to doesn't mean that the states can't do whatever they want and violate the Constitution.

  • 21. Steve  |  October 31, 2012 at 6:15 am

    *can do

  • 22. Lymis  |  October 31, 2012 at 4:18 am

    I know that the answer is as unclear as any other aspect of this until there is a ruling, but there is an additional question that rarely gets raised, and that is what happens if DOMA section 3 is declared unconstitutional to couples who were legally married in one state but currently reside in one where their marriage is not recognized by the state.

    Does the state's refusal to recognize that marriage affect only state benefits, or do federal benefits only apply if your state of residence recognizes your marriage?

    In other words, does someone who is married in Iowa but lives in Indiana get to file federal income tax as married, get social security benefits, and so on, but not any state benefits, or do they get nothing unless they actually reside in a state that also grants them?

  • 23. Steve the Second  |  October 31, 2012 at 6:17 am

    It depends on the law in question. Some laws are open about which marriages are valid, but some (like social security or veteran's benefits for example) explicitly go by the state of residence.

  • 24. D.Nollmeyer  |  November 1, 2012 at 2:39 pm

    My thoughts are that the Republican judges are conceding that DOMA is conflicting with states rights. However they are building state's right or federalism in the line of Rehnquist who spearheaded the right of the state especially in police powers, in their judgments.

    I was under the impression the main spearhead was the line developed by Kennedy in Loving v. Virginia, Lawrence v. Texas, and the Romer Case.

    This is all basic analytical analysis but then in the Prop 8, DOMA, or Ambercrombie case the holding in the judgment would be written by Kennedy stating that the Equal Protection Clause of the 14th Amendment is inclusive of LGBTi persons.

  • 25. Tallis  |  November 1, 2012 at 6:38 pm

    Dear Jacob, I appreciate this article so much. It really helped clear up a lot of confusion about the law in relation to marriage. I have a question, though. When states did not allow inter-racial marriage in the past, based on state laws, what was it that made this illegal? Was it considered unconstitutional discrimination? If so, why doesn't the same law apply federally to gays for sexual discrimination? It seems so clear that this is a federal civil rights issue. Please continue to enlighten me…

  • 26. Steve  |  November 1, 2012 at 7:45 pm

    The Equal Protection Clause seems simple. It states that all similarly situated groups need to be treated equally. But there have always been groups that needed to fight to be included in its protection: slaves, women, blacks and now gays. And every one of them has had setbacks with dreadful decisions by courts.

    America simply has a very sorry record of living up to its ideals

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