Federal Regulation of Marriage: A Study in Contradictions
With laws for and against same-sex marriage becoming so prevalent on the national scene in recent years, there has been much confusion, and on the part of congress, dictation on morals as to what constitutes “marriage” for purposes of federal law. Many state and federal regulations rely on a State definition of marriage for purposes of conferring rights and benefits to citizens. As promulgated, these regulations have a long-standing constitutional and jurisprudential basis. Such regulations were enacted to protect the spouses of accident victims, veterans, employees, and retirees. Congress, however, in enacting a federal ...view middle of the document...
In contradiction to these current regulations and past practices, Congress enacted the Defense of Marriage Act (“DOMA”), which added the following definition to the United States Code: “… [T]he 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.” (Defense of Marriage Act, U.S. Statutes at Large 2419 (1996): sec. 3; U.S. Code, Title 1, sec. 7).
Since the enactment of DOMA, however, five states (Iowa, New Hampshire, Connecticut, Vermont and Massachusetts) and the District of Columbia have come in direct conflict with the law by conferring full legal status to same-sex marriages (Urbina, 2010). Thus, a same-sex couple may be legally married in their state of residence but would not be recognized as such under federal law, or in any state that chose not recognize the marriage.
The sections of the Code of Federal Regulations that rely on the state law definitions of marriage are backed by a long history of constitutional jurisprudence founded on states’ rights, full faith and credit, equal protection and privacy laws. The constitutional underpinnings of such regulations are solid. DOMA’s contradictory attempt to undermine the long-standing legal bases for the way marriage is defined in the Code of Federal regulations should be resolved against DOMA and in favor of the regulations.
The Tenth Amendment expressly limits Congress's authority to enact legislation in areas traditionally reserved to the States: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (U.S. Constitution, 10th Amendment). Accordingly, “the States unquestionably do retain a significant measure of sovereign authority... to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government” (New York v. United States, 1992, p. 156); The Tenth Amendment thus operates to confine Congress to its constitutionally-conferred powers. “Whether Congress has invaded the province reserved to the States by the Tenth Amendment is ... a question that must be answered by inquiring whether Congress has exceeded the limits of authority bestowed upon it by Article I of the Constitution” (Gillespie v. City of Indianapolis, 1999, p. 704).
The Supreme Court has recognized for more than one hundred years that domestic relations are the paradigmatic area of State, not federal, concern, and that marital status lies at the core of domestic relations law. “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 [and that] the Constitution delegated no authority to the Government of the United States on [that subject]” (Haddock v. Haddock, 1906, p. 575). Regulation of marriage is derived from...