A reader points out that the federal DOMA does two things — it essentially (1) says that states need not recognize out-of-state same-sex marriages, and (2) says that the federal government does not recognize out-of-state same-sex marriages. The first provision, of course, is said to be an exercise of Congress’s power under the Full Faith and Credit Clause (“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”).
But, my reader asks, what’s the Constitutional authorization for the second provision? Where does Congress get the power to say which marriages the federal government will recognize?
Well, recall that the federal government doesn’t just recognize marriages for their own sake — it recognizes marriages for specific purposes. Federal tax law is influenced by whether people are married. So is federal immigration law, social security law, and a wide range of other laws. (Copyright law, for instance, provides that an author’s surviving spouse inherits the author’s right to terminate certain copyright grants; this provision exists independently of state wills and trusts law.)
The income tax is authorized under the “lay taxes” portion of the General Welfare Clause (with the Sixteenth Amendment eliminating any Direct Taxes Clause constraints). This authorization includes the authorization to decide who is entitled to certain treatment under the tax laws (e.g., the right to file jointly). The immigration law is authorized by the Naturalization Clause; so is the provision that lets spouses immigrate; so is the definition of spouse that the federal government selects.
Historically, federal law has generally relied on state law definitions of various matters, such as marriage. But there’s no constitutional mandate to do that, and to treat all marriages recognized by state law equally. The federal government might, for instance, choose to treat only marriages that have lasted longer than a year as marriages, or for that matter only first marriages and not remarriages following divorce (though I doubt the government would do that). If that’s what the government is doing for tax or immigration or copyright purposes, it’s within the government’s tax, immigration, and copyright powers.
Now one could of course argue that not recognizing homosexual marriages violates homosexuals’ individual rights (under the equal protection component of the Due Process Clause) — that’s the argument that carried the day in the Massachusetts Supreme Judicial Court’s Goodridge case, as to state marriage law under the Massachusetts Constitution. And one could also argue that the first part of DOMA, which governs state recognition of out-of-state marriages, violates the Full Faith and Credit Clause. Those are separate arguments, which I won’t confront in this post (nor in the next few days, since I’m about to leave on vacation, so please don’t e-mail me about them).
But there is no problem finding federal powers authorizing a federal definition of marriage — those would be the same federal powers that authorize the underlying federal law (tax law, immigration law, etc.) to which the definition of marriage would be relevant.
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