Queer Eyes for the States' Rights Guy:
The Legal Issues Raised by the Proposed Federal Marriage Amendment to the Constitution

Over the course of the summer, Americans saw the world in a new light - through "queer eyes," if you will.

In Lawrence v. Texas, the Supreme Court struck down America's sodomy laws as infringing the right to privacy. In so doing, the Court stressed that "[p]ersons in a homosexual relationship may seek autonomy [to define their own concept of existence], just as heterosexual persons do."

Meanwhile, in the midst of this seismic legal shift, the television shows "Queer Eye for the Straight Guy" and "Boy Meets Boy" both revealed and catalyzed a parallel cultural shift.

But for every cultural and legal shift, there are those opposed to the change - and the shift on gay rights is no difference. One example of the opposition is the Federal Marriage Amendment.

DOMA: The Existing Federal Statute on Marriage Discrimination

In 1996, the Hawaii Supreme Court declared that the State's Constitution prevented discrimination against same-sex couples in the context of marriage.

In response, U.S. Rep. Bob Barr proposed the Defense of Marriage Act (DOMA). The bill defined marriage, for federal purposes, as being between a man and woman. Thus, when it came to federal tax status, for instance, the bill ensured lesbian and gay partners would be unable to file joint tax returns - even should a state recognized them as legally wed - or receive any other federal marriage benefits.

DOMA also purported to give states the power to ignore marriages between same-sex couples, even if those marriages had been performed in other states. In this respect, however, many scholars have argued the act violated the Constitution. The Constitution's Full Faith and Credit Clause, they say, ensures that states cannot ignore other states' proceedings, and must give effect to them. Without such a provision, the Union might have dissolved into anarchy long ago.

Despite these serious constitutional concerns, DOMA passed in the House by a vote of 342-67 and in the Senate by 85-14. And seven years ago this month, President Clinton signed it into law.

Now, however, we are told that DOMA not be enough.

Did Lawrence Expand the Right to Marriage to Include Lesbian and Gay Couples?

On May 21, while Lawrence v. Texas was pending, U.S. Rep. Marilyn Musgrave introduced the Federal Marriage Amendment to the Constitution for consideration in Congress. The Federal Marriage Amendment would add additional language just a few lines below that Fourteenth Amendment's guarantee of "equal protection" as follows:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

Then, Lawrence was decided - and the forces in favor of the Federal Marriage Amendment further mobilized. In his scathing dissent in Lawrence, Justice Scalia added fuel to their fire. There, he claimed that the majority's decision would create a "massive disruption of the current social order."

Specifically, he claimed it would dismantle "the structure . . . that has permitted a distinction to be made between heterosexual and homosexual unions . . . ." That is, it would effectively legalize marriage for lesbian and gay couples.

Justices Kennedy and O'Connor had stressed that this wasn't the case, but Scalia warned, "Do not believe it." So who is correct? As prior columns for this site by FindLaw columnists Sherry Colb and Joanna Grossman have discussed, reasonable minds may differ, but Scalia may well be right, for the legal case for ending discrimination against gays and lesbians in marriage is, at a minimum, stronger after Lawrence.

Even DOMA Supporters Don't All Support The Federal Marriage Amendment

Recently, on September 4, the Senate held a hearing on the federal marriage legislation, DOMA. The hearing, however, was hardly a neutral one: "What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?"

Sen. John Cornyn, who chaired the hearing, insisted the hearings were really about DOMA - not the Federal Marriage Amendment, which has not been introduced in the Senate. Still, each of the six witnesses who testified at the hearings discussed the proposed amendment. Obviously, some see a connection between DOMA and the Federal Marriage Amendment.

Nevertheless, it is plainly not the case that all DOMA proponents support the Amendment. Indeed, lead DOMA sponsor and former U.S. Rep. Barr recently explained in an Op-Ed in The Washington Post why he would never support such an amendment - despite the fact that he still "do[es] not support same-sex marriages." He explained that in his view, "[m]arriage is a quintessential state issue. The Defense of Marriage Act goes as far as is necessary in codifying the federal legal status and parameters of marriage."

Barr also pointed out that then-vice presidential candidate Dick Cheney took this position in his 2000 debate against Sen. Joseph Lieberman. At the time, Cheney said, "I think different states are likely to come to different conclusions, and that's appropriate."

Barr's position on the Federal Marriage Amendment - including the states' rights rationale behind his opposition - has been applauded by Sen. Russ Feingold (an opponent of DOMA in 1996) and the ACLU. Openly lesbian Detroit News columnist Deb Price went so far as to call his argument "eloquent."

Nevertheless, it bears noting that Barr's position is also more than a tad hypocritical. As argued above, DOMA violated the Full Faith and Credit Clause, and that clause was a type of states' right too: the right to have court judgments of one state enforced in other states.

The Probable Future for Gay Marriage Arguments In Court

In all likelihood, the Federal Marriage Amendment - a piece of political grandstanding if there ever was one, will fail. If so, what is likely to occur? Obviously, gay marriage won't be instantly legal. Rather, the legal fights will still ensue.

Any day, the Massachusetts Supreme Judicial Court might - or might not - declare that the state is required to end marriage discrimination against lesbian and gay couples. If so, some Massachusetts gay married couple will doubtless someday want their marriage enforced in another state - and DOMA will be put to the test.

Hopefully, it will fail that test, and the courts will find, as they should, that DOMA violates the Full Faith and Credit clause insofar as it purports to authorize states to ignore other states' marriages.

Meanwhile, those states that have passed their own marriage definitions excluding same-sex couples may find those definitions challenged in court, and the other half of DOMA - the part that defines federal marriage to exclude same-sex couples - may face a similar challenge. The challenge would derive from Lawrence's recognition that every American, regardless of sexual orientation, has the right to "overt expression in intimate conduct with another person."

When this challenge is raised, Barr's pro-states' rights position - so convenient in the fight against the Federal Marriage Amendment - may look a lot less attractive to the ACLU and others who support gay rights. After all, if states have the right - as Barr claims - not to have their choice trampled by the Federal Marriage Amendment, Barr and others may insist that they also have the right to define marriage to their own liking. And if they have that right, they can define it to exclude same-sex couples.

That probably won't sit well with Feingold or others like him - and it won't sit well with gay-rights organizations like Freedom to Marry, whose goal is "ending sex discrimination in civil marriage, much as we ended race discrimination in marriage a generation ago."

For lesbian, gays, and their dependable allies, Barr is an unlikely ally when it comes to the Federal Marriage Amendment. But the states' rights argument that brought him into the alliance is a dangerous one for supporters of ending marriage discrimination against lesbians and gays. Acknowledging Barr's opposition to the Federal Marriage Act is one thing; accepting his states' rights argument is another - and it's a serious mistake.