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Another House Republican announces opposition to DOMA’s federal definition of marriage

DOMA Repeal DOMA trials Marriage equality

By Scottie Thomaston

Last week, another Republican in the House of Representatives, which is defending Section 3 of the federal Defense of Marriage Act, said in a speech that the Supreme Court should strike down Section 3, the federal definition of marriage that excludes same-sex couples. Rep. Justin Amash represents MI-03, and he is considered one of the more conservative people in Congress.

Amash hasn’t said he supports marriage equality generally, and during his speech he said:

“My view has always been that government should not be in the business of defining or redefining marriage,” Amash said. “I see it as a private issue. I personally see it as a religious issue.”

His issue with the law is one of federalism, concerns that Justice Kennedy and others voiced during oral arguments in United States v. Windsor this week. States have so-called “police powers” and the Court has even recognized that one of those powers is the regulation of marriage. The federal government shouldn’t be in the business of deciding which relationships are valid and which are not:

“I don’t want the government deciding who has a legitimate baptism, who has a legitimate communion, who’s involved in other personal relationships we have,” Amash said. “I want the government out of it.”

On DOMA specifically, Amash said he has “always opposed the federal definition of marriage in DOMA. So if it were repealed, I think that would be a step in the right direction, with respect to that portion of DOMA.”

Amash’s change of heart (as Dave Weigel points out, in 2011 Amash thought the law was valid) comes just after many politicians from both parties have announced support for marriage equality and have said Section 3 of DOMA should be overturned.

At last week’s arguments at the Supreme Court, it seemed like there are at least five votes for striking down Section 3 of DOMA, and while there doesn’t appear to be a consensus on how to do it and what legal rationale should be used, the federalism concerns ended up playing a significant role in the arguments. Justice Kennedy talked about how “when [there are] 1,100 laws [that involve the definition of “marriage” or “spouse”], which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the State police power.”

Other Republicans and conservatives have voiced concerns about the federalism aspects of the definition of marriage. Several federalism scholars filed a brief in the case suggesting Congress lacks the power to regulate marriage. And of course, at the First Circuit Court of Appeals in the Gill case, the panel wrote that there is no valid Tenth Amendment claim (such as the one raised by the state of Massachusetts in that case) but that there are real federalism concerns with the government involving itself in state issues, so those concerns are at play even in the equal protection analysis, weighing heavily in favor of striking down Section 3 of DOMA.

If the Court were to somehow avoid addressing the constitutionality of Section 3 (which doesn’t seem like a realistic possibility at this point) it would be up to Congress to pass the repeal bill, the Respect for Marriage Act. And since the House is controlled by the Republican party, if DOMA is to ever be repealed, more Republicans would necessarily have to abandon their current positions on the validity of the law.

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