As the Federal Marriage Amendment Fails in the Senate, Recent and Older Examples in Legal History Provide Insight

Currently, the President and many Republicans in Congress have expressed their support for the Federal Marriage Amendment (FMA) - which would change the U.S. Constitution to eliminate the right of any state to permit same-sex marriage. The Senate formally debated the measure this week, but, yesterday, failed to muster sufficient votes to bring it to the floor for a vote. Republican leaders have avowed to continue efforts to pass such a constitutional amendment, though.

It's important to recall, though, that only eight years ago, Congressional Republicans were advocating the opposite solution: Rather than federalizing the issue of same-sex marriage, they advocated leaving it to the states.

At that time, it seemed that Hawaii might soon legalize same-sex marriage. In response, Congress passed the Defense of Marriage Act (DOMA). DOMA defined marriage, for federal purposes -- such as, for example, for purposes of tax status, immigration, or social security -- as a union between a man and a woman. More pertinent here, it also purported to give states the right to refuse recognition to same-sex marriages celebrated in other states - while, at the same time, leaving open the possibility that each might permit them within their own borders.

As it stands now, Lynne Cheney still favors the DOMA position, but Vice President Dick Cheney is currently an advocate of the FMA. What caused at least some Republicans to reverse themselves on this issue?

To answer that question, a look at both recent legal history - on same-sex marriage - and older legal history - on divorce law -- is instructive.

The Debates over DOMA: Congress Trumpets States' Rights as to Marriage

DOMA was introduced only eight weeks before the 1996 presidential election.

When debating DOMA, Senator Trent Lott insisted that the problem to be dealt with was caused by the Full Faith and Credit Clause of the Constitution. That Clause says, in effect, that states must give effect to each other's public acts, records, and judicial proceedings. And among such acts would be the act of performing a marriage.

At the time, Lott suggested that what was objectionable was not that same-sex marriages would be performed by some states, but that all states would have to respect such marriages. His stated fear was that, in effect, same-sex marriage would be the rule across the country -- taking away different states' prerogative to choose different beliefs as to whom they would allow to marry.

Lott commented, for example, that if "such a decision affected only Hawaii, we could leave it to the residents of Hawaii to either live with the consequences or exercise their political rights to change things. But a court decision would not be limited to just one State. It would raise threatening possibilities in other States because of [the Full Faith and Credit Clause]." (Emphasis added.)

Other Republicans made similar arguments. Some expressly praised DOMA because it would reserve the right of each state to reach its own decision about the legal status of same-sex unions. DOMA was lauded for reinforcing states' rights, as against both the federal government and each other.

During his first run for President, George W. Bush drew a similar line. During a presidential debate in February, 2000, Bush said he would certainly campaign against gay marriage if his home state of Texas's legislature considered it, but insisted he would not tell another state what to do: "The state can do what they want to do."

Some Democratic opponents, of whom there were disappointingly few, questioned the need for DOMA. They pointed out that Hawaii was probably two years away from legalizing same-sex marriage, in any event.

Others questioned the wisdom of focusing on such a law given all the important national issues that needed attention. (For instance, Senator John Kerry urged Congress to "defend marriage" by focusing on one of the main stressors on heterosexual couples with children: lack of affordable childcare.)

Only a very few Democrats, such as Senator Edward Kennedy, said forthrightly that DOMA was wrong because it constituted the implementation of official prejudice against gays.

The FMA: In a Reversal, Congress Endorses a Federal Rule on Same-Sex Marriage

A lot can happen in eight years - in this case, the eight years since 1996, when DOMA was passed.

On the anti-same-sex-marriage side, Hawaii amended its Constitution to permit the state legislature to ban same-sex marriage, which it subsequently did. And, as of March 2004, thirty-seven other states have adopted so-called mini-DOMAs to preclude same-sex marriages in their own states and to refuse recognition to such marriages performed by sister states.

Meanwhile, on the pro-same-sex-marriage side, Massachusetts became the first state to legalize same-sex marriage. It did so by virtue of the November 2003 decision of its Supreme Judicial Court in Goodridge v. Department of Public Health - with same-sex marriages first celebrated there in May of this year. In reaching its decision, the Court held that the state's ban on same-sex marriage violated the Massachusetts Constitution.

Many observers concluded, as a result, that other States' similar constitutional provisions might be interpreted the same way - and, indeed, that it was even possible that the U.S. Constitution might ultimately be so interpreted.

Moreover, some daring American city mayors, based solely on this constitutional argument, began authorizing the marriages of same-sex couples in their home jurisdictions -- even though no state statute expressly said they could. They reasoned that to extend the protection of the current marriage laws only to opposite-sex couples would be unconstitutional discrimination - which they did not want to countenance on their watch. Since marriages were going to be performed, they reasoned, they ought to be performed with equal access.

The Shift in Tactics: "Traditional Marriage," Not States' Rights, Is Now the Issue

Just as DOMA was debated in the shadow of the upcoming 1996 Presidential election, so, too, the FMA was debated in the shadow of the upcoming 2004 Presidential election. Doubtless, Republicans have raised the issue now to divert attention from other election issues, pacify their base, and perhaps capture the loyalty of all-important swing voters.

In this current debate, Republicans' arguments have radically shifted from those they made in the DOMA debate. President Bush has clearly retreated from the notion that an individual state should have the right to define marriage any way it wants. He now speaks about the importance of traditional - meaning opposite-sex -- marriage as "the most fundamental institution of civilization." And his view of states' rights, now, is that they are free to "make their own choices in defining legal arrangements other than marriage." (Emphasis added.)

"Traditional marriage," Senator Rick Santorum argued on the Senate floor, "is good for everyone." And another Senator pointed listeners to Europe, where, he claimed, the recognition in some countries of same-sex unions has led to the systematic decline in the number of heterosexual couples who marry, and a resulting decline in the institution of marriage itself.

Dumping DOMA: Republicans Now Say Their Own Law Was Unconstitutional

Indeed - ironically -- Republican leaders in debate now have gone so far as to argue that DOMA--the very law they introduced and supported--is almost certainly unconstitutional.

Why? Because it has the effect of modifying the U.S. Constitution's Full Faith and Credit Clause, something that Congress does not have the power to do without following the proper procedures for constitutional amendment.

An ordinary statute, Republicans now suggest, cannot have effectively amended the Constitution. Congress does not have the power to dictate how much full faith and credit one state must give to another's acts. It can only dictate, at most, how the validity of such acts might be proven.

In 1996, when DOMA was debated, liberal law professors made this very argument - but Republicans in Congress didn't listen. Now - in another irony -- they use posterboards with quotes from these same commentators in support of their argument that DOMA is unconstitutional.

What about the arguments on the other side of the aisle? To begin, Democrats have had to abandon the "it's not yet necessary" argument, since same-sex couples are marrying in Massachusetts as they speak. But they have continued with the line of argument about other important issues relating to marriage being neglected by the Senate--only now the "other issues" are truly pressing: Iraq, terrorism, and the economy, to name a few.

In addition, Democrats have a new argument: They have argued that the proposal of the Amendment is no more than electioneering - given that the election is imminent, and even the Amendment's proponents proceeded while openly admitting it had no chance of passing.

While DOMA's timing was suspicious, it had the support of the sitting President and indeed passed. In contrast, the FMA - a Constitutional Amendment - was predicted by all not to pass, and, at least for now, it has failed. Given this contrast, the Democrats do have a point about Congress's need to focus on realistic legislation - not electioneering.

A Precedent: American Family Law Has Dealt with Conflicts Among States Before

The specific issues raised in the battle over same-sex marriage are new. But a broad question that is arising has been raised before in our history.

The question is this: How can we reconcile -- or should we simply tolerate - conflicts among state statutes relating to family law -- an area oft said to be "reserved to the states"?

America confronted this question earlier when it came to grounds for divorce. Throughout the Nineteenth Century, and well into the Twentieth, there were significant variations in divorce laws.

Some states made divorce available on several fault grounds; some, only on grounds of adultery; and at least one, South Carolina, simply did not permit divorce at all.

In addition, some states required several years of residency as a prerequisite to filing for divorce; others allowed periods of as short as six weeks or even none at all.

Finally, some states permitted remarriage immediately; some permitted it only after a waiting period, and others not at all, at least for the at-fault spouse.

The Lessons of Our Experience With Differing State Divorce Laws

The lack of uniformity among divorce laws raised two sets of concerns.

First, it was procedurally complicated for states to have different standards for divorce -- particularly if a stricter state might refuse recognition to a decree of divorce from a state with more lax standards. A person might have a different marital status, state-by-state, as he or she traveled. Crossing a state line could mean a single person was considered still married - a ridiculous result.

Second, the different standards for divorce irked anti-divorce moralists. Opponents of divorce feared that easier divorce would dilute the tradition of marriage nationwide. They also feared that residents of strict states might evade their own state's laws by obtaining "quickie" -- or otherwise easier -- divorces in more lenient jurisdictions.

The proliferation of lax divorce laws, they argued, would undermine marriage (as they then knew it), society, and, ultimately, civilization.

Sound familiar? President Bush is, of course, sounding this very same theme today when it comes to same-sex marriage - arguing, again, that marriage is "the most fundamental institution of civilization," and that same-sex marriage would raze that institution.

Amendments Federalizing Marriage and Divorce: Oft Tried, Never Successful

Congress's tactic, in proposing the FMA, will sound familiar to legal historians. According to Cardozo Law Professor Edward Stein, putting the FMA aside, in our history seventy-seven other constitutional amendments have been proposed that would have given Congress the power to regulate marriage and divorce at the national level. Three would have enshrined the once commonplace ban on interracial marriage in the constitution. But none ever even made it to a vote.

The proposals to constitutionally ban interracial marriage would have fundamentally changed the nature of the Constitution - as would the contemporary FMA. The Constitution has always served to guarantee minimum rights and liberties. It has almost never been used to rein in individual rights. The only exception is the Eighteenth Amendment--which established Prohibition--and its repeal only 14 years after ratification speaks for itself.

Other Attempts Toward Uniformity In Marriage and Divorce: Also Failures

But the proposed amendments to give Congress the power to regulate marriage and divorce law would have erected a fundamental change to our legal system as well. State regulation of family law has been the rule, reined in only by the enforcement of constitutionally minimum guarantees.

Outside of the Congressional arena, uniformity in state marriage laws was also separately pursued, through bodies like the National Conference of Commissioners on Uniform State Laws. These bodies - private organizations whose work did not have the force of law - "adopted" (and urged state legislatures to adopt) several uniform divorce laws. But none of these laws was ever adopted by more than a few states. And, therefore, uniformity certainly did not result.

It's no wonder that all the proposals for uniformity failed: Strict states did not want to adopt more lenient laws. Lenient states did not want to adopt stricter laws. And neither wanted Congress to pick the other states' view, and impose it on them.

States thus learned to co-exist with non-uniform divorce laws.

A Supreme Court Case Tolerates Inter-State Differences on Divorce

There were, of course, periodic flare-ups -- pitting state against state. One such case, Williams v. North Carolina (Williams I), made it to the United States Supreme Court, which issued an opinion in 1942.

In that case, two North Carolina residents absconded to Las Vegas to divorce their respective spouses, and marry each other. They then returned home - only to be arrested as bigamists.

North Carolina refused to recognize the Nevada divorce decrees. But the Supreme Court, in essence, said that North Carolina had to do so -- as long as the plaintiffs met Nevada's procedural requirements before filing for divorce, which they had. (They said they'd lived in an autopark for the requisite forty-two days, thus establishing a legal domicile.)

The majority opinion recognized that its ruling would, in some modest way, dilute North Carolina's right to insist on strict moral standards for divorce. But it preferred that consequence to the "disastrous" harm that would result if a mere step over a state line could transmute a couple from lawful divorcees to bigamists.

Although a later proceeding in the same case left North Carolina free to disregard Nevada's decree (Williams II), it was because of a showing that Nevada's requirements had not in fact been met. The core principle of the first Williams decision thus remains intact, and in the almost sixty years since Williams I, states have by and large respected each others' divorces - even if the terms on which one state might grant a divorce were abhorrent to another.

The consequences? The Republic did not fall. And marriage continued to be the central institution of American society.

The Lessons of History: When the States Disagree on Marriage, It's Okay

What are the lessons we can take from history that are relevant to the current same-sex marriage debates?

First, for better or worse, states have clung tightly to their power to make rules about marriage and divorce. When some states have restricted marriage and divorce, other states have refused to follow their lead - and yet their marriages and divorce decrees, thanks to Williams I, have generally still been respected by other states.

Second, there is one limit on states' power to regulate marriage and divorce: States cannot do so in a way that violates the federal constitution's minimum guarantees of equality. And if they try, the U.S. Supreme Court can step in to abolish the offensive practice. This is exactly what happened in Loving v. Virginia, when the Supreme Court held Virginia's ban on interracial marriage unconstitutional.

Third, in many areas of law, states provide their citizens with greater individual rights - when it comes to family law -- than those promised by the federal constitution.

In my view, this generosity on the part of some states in interpreting what rights individuals enjoy is something to be encouraged, not stifled. Thus, Massachusetts should not be punished for providing its citizens with greater civil rights than other states. Indeed, it should be applauded for halting the arbitrary and discriminatory enforcement of marriage laws.

For now, the Federal Marriage Amendment has failed - its only lasting effect will be on the polls rather than the Constitution. It thus joins the long list of failed attempts to amend the constitution on issues of marriage and divorce.

It seems, then, that our Constitution will continue to say, on the topic of marriage, only what it has always said: Simply that the marriage laws, like all others, must provide equal protection of the law to all. In Loving, that meant different-race marriages had to be legal in all states. Whether it means same-sex marriages have to be legal in all states, too, remains to be seen.