July 10, 2010
Congress Lacks a Constitutionally Granted Power to Define Marriage, † Œ Ø ¿
Andrew's #5 makes me wonder whether he isn't too enamored of the opportunity to oppose lefitsts in the course of supporting a liberal judicial ruling. I'll admit that I, too, find it very interesting that my reasons for disagreeing with Judge Tauro's rulings (as I understand them) ought to ally me with a variety of left-wingers. They dislike federalism that subverts their statist aims; I dislike federalism that collects taxes that will transfer to states with no federal definition of terms required.
I'd note, for one obvious instance, that it is accepted practice that it is left to sovereign states to regulate abortion, as long as women have the right thereto (per Roe v. Wade et al.) according to some basic requirements. How would Tauro's reasoning not invalidate such legislation as the Hyde Amendment, preventing federal funding of abortions? If a state determines that abortion should be among the procedures covered by public healthcare programs,then it would seem that Tauro has left the federal government no recourse but to supply money to the state without defining the limits of acceptable procedures.
More to the point, though, I'm not persuaded that Andrew's #2 actually answers my objection (and Brassband's). Note, especially, the first sentence:
Attorney General Coakley's argument, which Judge Tauro agreed with, is that when the Federal government creates its own definition of marriage, it requires states to keep track of different types of marriages, even if the states don't recognize the Federal distinctions in their own laws.
In the case (essentially) of contractual requirements for the issuance of federal dollars, "marriage" is a definable term, not unlike "eligible participant" or "owner" or "the company" or "applicable service." Given the complexities of our layers of government and their many overlapping programs, the fact that "marriage" means something different for the purpose of federal contracts than for state contracts hardly creates an undue burden.
Under such an approach, it would be impossible for the federal government to do anything without exceeding its powers, in some way. Recall that the Constitution leaves authority not just to the states, but also to the people. According to the reasoning that Andrew describes, he could just as well say that the federal government, in creating any job or office, should not be able to set requirements because "it is not enough to say the [applicant] can opt-out of this requirement by not participating."
I write all this, of course, from within the belief that the federal government should not be as big and all-spending as it is. Wishing for a less powerful national government, however, should not lead us to accept a government that's small in control of taxpayer dollars but just as big in handing them out.
I haven't had time to review them, but I wonder about the language used in the decisions over ruling the anti-miscegenation statutes in the South.
The Federal gub'mint must have thought they had some authority over marriage.
Posted by: Warrington Faust at July 10, 2010 6:57 PMTwo points that I think are crucial here:
How would Tauro's reasoning not invalidate such legislation as the Hyde Amendment, preventing federal funding of abortions?It wouldn't, because paying for abortions is not a power that anyone suggests that only "the Government" possesses.
Here in the West, we've decided that there are some things that only government can do. Take two examples, the marriage example we are discussing, and that of creating a court system. We say that the creation of courts, allowed to impose the terms of their rulings on individuals, is the exclusive province of government. Non-government, private organizations cannot set up alternative court systems which can compel compliance with their decisions, invalidate the actions of government courts, etc. In the American system, this power -- as is true of any government power -- begins with the states, but the states have clearly agreed to share part of their authority to create a court system with the Federal Government throughout the Constitution, so there is no doubt that the Federal Government can create courts, including courts which can trump state authority in some areas.
We also say that recognizing marriage is something that government can do, at least in certain civil areas, some of those areas being related to spending, but also for some non-spending areas, such as spousal privilege within the legal system, i.e. people can't arbitrarily decide who they are married to for the purposes of spousal privilege; they have to have their marriage recognized. Again, in the American system of government, the sole authority to recognize marriage, at least for civil purposes begins with the states, and I can't find anything in the enumerated powers of the Federal Government that suggests that states ever gave away their power to define marriage to the Federal level.
No one has ever suggested that paying for abortions is a sovereign power possessed only by government as illustrated in the above two examples. (Maybe this is what the Bongiorno test is trying to get at, but [in my opinion] not doing it very well?).
Under such an approach, it would be impossible for the federal government to do anything without exceeding its powers, in some way.You've left out a key component of what I've been arguing, the the Federal Government needs an enumerated power relevant to any action it wants to take, to have the power to trump a state action. To use a silly but accurate example, the US Constitution gives the Federal Government the right to create a post office, so it can set up whatever structures it likes to run a post office, and doesn't have to worry about conflicting with state-level post office laws and regulations. The Constitution doesn't give the Federal Government, anywhere I can reasonably see, the right to define marriage, so with regard to what happens within a state, it has to accept state definitions of marriage.
Posted by: Andrew at July 11, 2010 9:45 AM
Andrew writes:
"Non-government, private organizations cannot set up alternative court systems which can compel compliance with their decisions,"
How about "binding arbitration" and the American Arbitration Association?
Granted, there may be review by the courts; but they are private systems.
I am not suggesting, in any way, that the judiciary should be removed as a co-equal branch of government. If we did that, the Supreme Court would have to stand at when the President appeared at State of the Union messages.
For all of that, I agree with Andrew that the Federal Government has no "right" to define marriage. Therefore, it is a "states rights" issue.
I am not impressed by "equal protection" arguments. Many of the things complained of, such as hospital visitation, are simply "regulations". Why not change the regulations, rather than alter marriage.
Maybe we just ignore the regulations, as we do so many things. Does anyone know a bicyclist who has been ticketed lately for failing to stop at a Stop Sign?
Posted by: Warrington Faust at July 11, 2010 10:19 AMpaying for abortions is not a power that anyone suggests that only "the Government" possesses.
Neither is paying for healthcare (or any of the other items that DOMA affects). The federal government isn't claiming to recognize marriages for other purposes than its own programs; it's defining the range of relationships called "marriage" to which its programs apply. That's precisely parallel to defining the range of procedures to which services called "healthcare" apply (excluding, e.g., abortion).
Interesting that you bring up court systems. I don't have time to re-research the particulars, but I've had discussions related to implied Congressional powers over the judiciary. I think it had to do with Congress's ability to dissolve inferior courts, which Article III, Section 1, of the Constitution doesn't explicitly allow. It's a similar principle.
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The Constitution doesn't give the Federal Government, anywhere I can reasonably see, the right to define marriage, so with regard to what happens within a state, it has to accept state definitions of marriage.
The mechanics of marriage make the issue a bit more complicated than that. A Massachusetts marriage isn't only functional in Massachusetts. By the argument that you and Judge Tauro are presenting, once Massachusetts has issued a marriage license to a same-sex couple, the federal government must provide its services to that couple no matter where they live. The state issues the license, and the federal government must acknowledge licenses duly issued.
It may require a court decision, or perhaps the actions of local bureaucrats and elected officials (as with AG Lynch's "ruling" that Rhode Island recognizes MA same-sex marriages for certain purposes), but it looks likely that this decision will require other states to apply federal Medicaid funds to couples with MA marriage licenses, even if they do not recognize same-sex marriages for their own purposes.
It's the problem of which Coakley complained but in reverse. Otherwise, you're not really arguing that the states have the right to issue marriage licenses, which the federal government must recognize. Rather you're arguing that the state has a right to the funds that the federal government is providing.
Posted by: Justin Katz at July 11, 2010 12:04 PMIf a Massachusetts marriage license is good everywhere, and a Massachusetts driver's license is good everywhere, why isn't a Massachusetts gun license good everywhere?
Are there specific comity laws?
Snce a Massachusetts decision is being discussed here, I would like to make a point on which I did some research. At the center (or near periphery)was the Massachusetts law which forbade the marriage of person who could not marry in their home state. This was presentedas an "anti-gay statute". In fact, it was an old law that was created in the day (1920's) when there were long "waiting periods" after divorce before people could remarry. I believe it was two years for women and one year for men, in most states. The law was to prevent people ineligible for marriage because of a "waiting period" from going to Massachusetts to wed.
Posted by: Warrington Faust at July 11, 2010 12:37 PM