Gavin Howe
The topic of whether the government can make federal laws about marriage is a complex and multifaceted issue that has been the subject of much debate in the United States. Historically, marriage has been conceived as a civil contract in the US, granting states jurisdiction over marriage laws. This has resulted in a mix of federal and state regulations governing family law. While the federal government has made efforts to create a uniform definition of marriage, the authority to define and regulate marriage ultimately rests with the states. This is supported by the Tenth Amendment, which assigns to state governments all powers not explicitly granted to the federal government. The Supreme Court has also played a significant role in shaping marriage laws, with landmark decisions such as Obergefell v. Hodges in 2015, which established that the government could not refuse to recognize same-sex marriage.
| Characteristics | Values |
|---|---|
| Can the federal government make laws about marriage? | Yes, but the Tenth Amendment assigns to state governments all power not explicitly given to the federal government. |
| Can the federal government make laws about divorce? | No, the power to write and enforce laws governing divorce is left to the states. |
| Can the federal government make laws about same-sex marriage? | Yes, the federal government can make laws about same-sex marriage, but this is a contentious issue with some arguing that it is not a proper role of the federal government. |
| Can the federal government make laws about interracial marriage? | Yes, the federal government can make laws about interracial marriage, but this is also a contentious issue. |
| Can the federal government make laws about marriage benefits? | Yes, the federal government can make laws about marriage benefits, but this is also a contentious issue. |
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What You'll Learn
The US Constitution and the interpretation of federal laws
The US Constitution and its interpretation play a major role in regulating family life and the laws that govern it. The Tenth Amendment assigns to state governments all power not explicitly given to the federal government, and Article VI makes the Constitution and its interpretation, as well as federal laws based on the Constitution, supreme over state constitutions and laws.
The US Constitution's Fifth and Fourteenth Amendments ensure that:
> "No person shall [...] be deprived of life, liberty, or property, without due process of law."
The aspect of this clause that deals with family law protection focuses on the deprivation of liberty—the liberty to plan one's own family relationships. The Fourteenth Amendment's Equal Protection Clause and the Due Process Clause are also relevant to the interpretation of federal laws regarding marriage, as seen in Judge Vaughn Walker's ruling that moral opposition to same-sex marriage is not a sufficient reason to validate a law.
The interpretation of the US Constitution has been a key factor in the legalisation of same-sex marriage. The Defense of Marriage Act (DOMA), signed into law in 1996, defined marriage as between a man and a woman, allowing states to deny marriage equality. However, in 2013, the Supreme Court deemed DOMA unconstitutional in United States v. Windsor, paving the way for marriage equality. In 2015, the Supreme Court held in Obergefell v. Hodges that the government could not refuse to recognize same-sex marriage, further solidifying marriage equality across the nation.
The Respect for Marriage Act (RMA) ensures that legally married same-sex couples have their marriages recognised by the federal government and that "place of celebration" is the standard for recognition of federal benefits for same-sex marriage. The RMA provides additional protection for married couples and families by requiring that marriages, adoption orders, divorce decrees, and other public acts be honoured by all states, consistent with the Full Faith and Credit Clause of the US Constitution.
While the federal government has played a significant role in interpreting and shaping federal laws regarding marriage, the states also have considerable authority in this area. The principles of federalism honour the exclusive authority of states to define and defend marriage, as seen in cases such as Hollingsworth v. Perry and United States v. Windsor. The sovereignty of states in matters of marriage is a recurring theme in court decisions, with Chief Justice Roberts counselling against rushing to judgment and respecting the states' "historic and essential authority to define the marital relation".
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The Tenth Amendment and state power
The Tenth Amendment to the US Constitution assigns to state governments all powers not explicitly given to the federal government. This includes the power to make laws about marriage, which is traditionally conceived of as a civil contract in the US, and therefore under state jurisdiction.
The Supreme Court has claimed the final word on what the Constitution means since its 1803 decision in Marbury v. Madison, and a multitude of decisions by the Justices have interpreted the Tenth Amendment to protect the powers that states have traditionally used as part of the government that operates closest to the people themselves.
The Defense of Marriage Act (DOMA) was signed into law in 1996 and defined marriage as between a man and a woman, thereby allowing states to deny marriage equality to same-sex couples. However, in 2013, the Supreme Court deemed DOMA unconstitutional, paving the way for marriage equality. In United States v. Windsor, the Supreme Court ruled explicitly that state governments remain the primary authority to define marriage and its benefits.
Efforts to legalize same-sex marriage began to emerge across the country in the 1990s, with civil unions for same-sex couples established in many states. However, these unions created a separate but equal standard, as couples were denied access to more than 1,100 federal rights and responsibilities associated with marriage.
The Federal Marriage Amendment (FMA) has been introduced in the United States Congress multiple times, with supporters arguing that it would protect the traditional definition of marriage as being between a man and a woman. Opponents of the FMA, including some politicians and legal scholars, argue that regulating marriage is not a proper role of the federal government and that it would strip power from the states.
In 2015, the Supreme Court held in Obergefell v. Hodges that the government could not refuse to recognize same-sex marriage, and the Respect for Marriage Act (RMA) was passed to ensure that legally married same-sex couples are entitled to have their marriages recognized by the federal government. The RMA also affirms that public acts, records, and proceedings related to marriage should be recognized by all states, providing additional protection for married couples and families.
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Marriage equality and same-sex marriage
In the United States, marriage is conceived as a civil contract, giving states jurisdiction over marriage laws. The federal government has also been involved in regulating marriage, with the Defense of Marriage Act (DOMA) signed into law in 1996, defining marriage as a union between a man and a woman. This allowed states to deny marriage equality to same-sex couples, and they were also denied access to federal rights and protections.
Efforts to legalize same-sex marriage began in the 1990s, with civil unions for same-sex couples in many states, but these were not recognized federally. The first state to legalize same-sex marriage was Massachusetts in 2003, following a Supreme Court decision that struck down sodomy laws. In 2008, California briefly achieved marriage equality, but it was soon overturned by Proposition 8, which defined marriage as between a man and a woman.
The fight for marriage equality involved changing policies and shifting public sentiment towards acceptance of same-sex marriage. Organizations like HRC played a crucial role in rallying support on local, state, and federal levels. In 2013, the Supreme Court struck down DOMA, deeming it unconstitutional and advancing marriage equality.
Finally, in 2015, the Supreme Court's landmark decision in Obergefell v. Hodges granted same-sex couples in all 50 states the right to marry, ensuring full and equal recognition under the law. This decision was based on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, guaranteeing the fundamental right of same-sex couples to marry on equal terms as opposite-sex couples. As of 2022, DOMA has been repealed and replaced by the Respect for Marriage Act, which recognizes and protects same-sex marriages under federal law.
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The role of the Supreme Court
One notable example is the 2015 ruling in Obergefell v. Hodges, where the Supreme Court held that the government could not refuse to recognize same-sex marriage. This decision marked a pivotal moment in the fight for marriage equality, as it effectively legalized same-sex marriage nationwide. The Court's ruling struck down state bans on same-sex marriage, concluding that they violated the 14th Amendment's Equal Protection Clause and the Due Process Clause.
Prior to the Obergefell decision, the Supreme Court had also played a crucial role in advancing marriage equality. In 2013, the Court issued key rulings in Hollingsworth v. Perry and United States v. Windsor. In Hollingsworth, the Court determined that Proposition 8, which sought to define marriage as between a man and a woman, lacked legal standing. This ruling affirmed the authority of states to define and defend marriage, upholding the principles of federalism.
In United States v. Windsor, the Supreme Court deemed the Defense of Marriage Act (DOMA) unconstitutional. This ruling paved the way for full equality by ensuring that legally married same-sex couples would have their marriages recognized by the federal government. The Court found that DOMA violated the Fifth Amendment's due process guarantees, as it deprived same-sex couples of liberty without due process of law.
Additionally, the Supreme Court's decision in Lawrence v. Texas in 2003 struck down sodomy laws and contributed to the momentum for marriage equality. This decision set the stage for Massachusetts to become the first state to legalize same-sex marriage through a court ruling.
While the Supreme Court has played a pivotal role in shaping marriage laws, it is important to note that the Court's decisions often reflect broader shifts in public sentiment. For example, the Court's rulings in favor of marriage equality came after years of advocacy and changing hearts and minds across the country. The work of organizations like the Human Rights Campaign (HRC) and various coalitions was instrumental in building support for marriage equality at the local, state, and federal levels.
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The Defense of Marriage Act (DOMA)
DOMA specifically stated that "the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife". This meant that same-sex couples were denied many benefits and recognition that opposite-sex couples enjoyed. These benefits included over 1,000 federal protections and privileges, such as access to a spouse's employment benefits, the recognition of the marriage itself, the rights of inheritance, joint tax returns and exemptions, and the right to cohabit in college or military housing.
The supporters of DOMA believed that opposite-sex marriage was the only appropriate method for family formation and procreation. One of the main arguments from proponents of the Act was that same-sex marriage could lead to alternative family formations and could even result in incestuous relationships and polygamous marriages. On the other hand, the opponents of DOMA claimed that the Act's definition of marriage was discriminatory on the basis of sex and equated homosexuality with incest and polygamy.
In 2013, in United States v. Windsor, the U.S. Supreme Court struck down DOMA's definition of marriage as only between one man and one woman. Furthermore, in 2015, in Obergefell v. Hodges, the Supreme Court struck down the section of DOMA that allowed individual states to not recognize same-sex marriages performed in other states.
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Frequently asked questions
Yes, the government can make federal laws about marriage. However, the Tenth Amendment assigns to state governments all power not explicitly given to the federal government.
States have jurisdiction over marriage as it was conceived as a civil contract in the US. State sovereignty and the authority of the people of the states to define marriage are protected by the US Constitution.
The Supreme Court has played a significant role in shaping marriage laws, particularly regarding same-sex marriage. In 2015, the Supreme Court held in Obergefell v. Hodges that the government could not refuse to recognize same-sex marriage.
The RMA ensures that legally married same-sex couples have their marriages recognized by the federal government. It establishes that the "place of celebration" is the standard for recognizing federal benefits for same-sex marriages.
