Posted 3:00 PM by Robert

Such Setbacks III

The recent controversial ruling of the Supreme Judicial Court of Massachusetts dealing a setback to traditional marriage appears to conflict directly with the federal Defense of Marriage Act.

In 1996 Congress enacted the Defense of Marriage Act, which provides, "No state shall be required to give effect" to a marriage "between persons of the same sex."

In 1999, the Vermont Supreme Court said it was unconstitutional to deny homosexual couples the "benefits and protections that flow from marriage" but did not say gays must be allowed to marry. The Vermont Legislature created "civil unions" to give similar rights and responsibilities to gay couples, an idea that has been adopted in California and elsewhere.

But in its recent controversial ruling, the Supreme Judicial Court of Massachusetts said nothing about civil unions. Instead, that court declared that Massachusetts may not exclude "qualified same-sex couples from access to civil marriage." "[B]arring an individual from the protections, benefits and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution," the state court said in its 4-3 ruling. It gave the state 180 days to comply.

That holding seems to directly conflict with the federal law.

But is the Defense of Marriage Act Constitutional? And, if not, could it be made Constitutional? Recent United States Supreme Court decisions limiting the sweep of the Commerce Clause prevent an easy answer in the form of an appeal to that particular Congressional power.

The very features of this Massachusetts holding that could give it a national impact could also validate the Defense of Marriage Act and therefore overturn the holding. Specifically, couples who wed in Boston are married just the same in every other state - immediately while the couple lives in Boston and later if they move to Los Angeles. Arguably, that's because under the "full faith and credit" principle of the U.S. Constitution, judicial decisions - and therefore valid contracts - made in one state are automatically honored in another. The Defense of Marriage Act is intended to head off the possibility of a "full faith and credit" extension of decisions such as the one in Massachusetts by declaring as a matter of federal law that same-sex marriage is an invalid contract that would not be honored even in Massachusetts. If the "full faith and credit" argument is right, then the Massachusetts decision would automatically have a huge effect on "interstate commerce" - which allows Congress to legislate on the matter, and validates the Defense of Marriage Act and overturns the Massachusetts holding. Got that? But none of this reasoning has been accepted or tried - the issue has never before come up.

Interestingly, if the Supreme Court had not overturned its own decision in National League of Cities v. Usery, that case might have prohibited Congress from legislating on marriage through the Commerce Clause because marriage is traditionally a state exclusive. But that's so much history.

Congress also has the right to enforce 14th Amendment rights - but recent United States Supreme Court cases have held that Congress can't create or define rights under the 14th Amendent, as the Court held the Congress had tried to do with its statute "restoring" putative First Amendment religious liberties the Court had held were not, in fact, included in the First Amendment.

Some people say they think that the Defense of Marriage Act is Constitutional as written: "I disagree with the [Massachusetts] decision," said Senate Minority Leader Tom Daschle (D-S.D.). "I believe that the Defense of Marriage Act we passed in the Congress is constitutional, and I think that will be borne out."

Why is Tom Daschle saying such things? Aren't the members of the Massachusetts Supreme Judicial Court who voted for this decision just the kind of people he's demanding that the President put on the federal courts? Of course they are! Isn't this the kind of activist, fashion-forward decision most Democratic Senators want courts to make? Of course it is! Tom Daschle has spent years working to move the federal courts in just the same direction as this Massachusetts court. His statement is completely inconsistent with his career of actions. The image of Senator Daschle repudiating a state court decision in which the overwhelming majority of the people he desires to put on the federal courts would heartily concur is exquisite.

But Tom Daschle wants to extend that career - and he is up for re-election next year in South Dakota, a pretty conservative state on such matters. He relies on presenting himself as quite a different person to his South Dakota suckers (er, I mean constituents) than the person who flashes by under the Capitol Dome in those expensive suits. [How many suits does Senator Daschle own that could never be worn in South Dakota, in any circumstances or on any occassion, without his being hopelessly overdressed? More than a few, from his Washington television appearances.] And he's already got lots of other problems - including from his suggesting that President Bush knew a lot about the planned 9-11 attacks (an accusation the Senator later retracted and denied having made).

All of which - and so much more - makes the suggestion in this Adam Nagourney article from the New York Times a real hoot to the extent it suggests that the Massachusetts decision is also a 2004 problem for Republicans. Coccooning? Mr. Nagourney has sealed himself in a huge granite pyramid.