Same-sex marriage issue reserved to the states

One of the cases in which the U.S. Supreme Court has granted certiorari to address same-sex marriage involves Section 3 of the federal Defense of Marriage Act (DOMA), which directs that for all "Acts of Congress, or any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Some commentators believe that the court will rule that the lower federal courts did not have jurisdiction to decide the issues before them. In that event, the lack of Article III jurisdiction will likely be the result of the same concerns, based in federalism, which could also lead the court to conclude that Section 3 of DOMA is unconstitutional, because defining what is or is not a "marriage" is reserved to the states.

Under "Our Federalism ... the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Younger v. Harris, 401 U.S. 37, 44 (1971). "State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power." New York v. United States, 505 U.S. 144, 181 (1992). "The Framers thus ensured that powers which 'in the ordinary course of affairs, concern the lives, liberties, and properties of the people' were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45 (J. Madison). The independent power of the States also serves as a check on the power of the Federal Government: 'By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.'" National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2578 (2012) (citation omitted).

One early case actually said: "The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States." In re Burrus, 136 U.S, 586, 593-94 (1890). See Haddock v. Haddock, 201 U.S. 562, 575 (1906) ("No one denies that the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce. ... [Moreover], it must be conceded that the Constitution delegated no authority to the government of the United States on the subject of marriage and divorce."); Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-84 (1930) ("If when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States, there is no difficulty in construing the instrument accordingly and not much in dealing with the statutes.").

More recently, that theme has continued. In United States v. Lopez, 514 U.S. 549 (1997), the court struck down as beyond Congress' constitutional power a statute which made it a crime for any individual to knowingly possess a firearm in a school zone. The majority (id. at 564-56), concurring (id. at 585), and dissenting (id. at 624) opinions all cited the law of domestic relations as being reserved to the states. In Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 13 (2004), the court held: "while rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue, in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts." (Citation omitted).

Thus, in some cases federal law has impacted aspects of a marriage relationship (Cleveland v. United States, 329 U.S. 14 (1946) (upheld criminal prosecution for interstate transportation of polygamous wives in violation of the federal Mann Act); Loving v. Virginia, 388 U.S. 1 (1967) (criminal prosecution for violation of state's anti-miscegenation law violated the 14th Amendment's "central purpose" to "eliminate all official state sources of invidious racial discrimination in the States"); Boggs v. Boggs, 520 U.S. 833 (1997) (ERISA preempts state community property laws)), but the court still adheres to the rule that the "whole subject of the domestic relations" is beyond Congress' constitutional power. See Boggs, 520 U.S. at 848.

The court has also articulated a "domestic relations exception" to federal courts' diversity jurisdiction, "which 'divests the federal courts of power to issue divorce, alimony, and child custody decrees.'" Newdow, 542 U.S. at 20-21 (Rehnquist, C.J., concurring) (citation omitted). Cf. Ankenbrandt v. Richards, 504 U.S. 689 (1992) (federal district court may exercise diversity jurisdiction over a tort action brought by a mother and children against the ex-husband-father). However, in none of its case has the court intimated that Congress may actually define "marriage."

Many argue that Lawrence v. Texas, 539 U.S. 558 (2003), which held unconstitutional a state statute criminalizing homosexual activity between consenting adults, and Loving v. Virginia, which held unconstitutional a state criminal anti-miscegenation law, require that DOMA be held unconstitutional on equal protection grounds, but in Lawrence the court emphasized that its ruling "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." 539 U.S. at 578.

However, the same underlying federalism concerns that have led the court to rule that federal courts should not exercise jurisdiction to decide issues of domestic relations could lead the court to the conclude that DOMA's Section 3 is unconstitutional because its mandate is beyond Congress's "few and defined" powers (The Federalist No. 45), and it is therefore "merely [an] act[] of usurpation and will deserve to be treated as such." The Federalist No. 33 (A. Hamilton).

Kris Whitten is a retired California Deputy Attorney General, and the author of "Section Three of the Defense of Marriage Act: Is Marriage Reserved to the States?" 26 Hast. Con. L. Q. 419 (1999).