Jonathan Adler has further analysis of the recent ruling from the 2nd Circuit Court of Appeals striking down the Defense of Marriage Act. One of the important things I didn’t discuss when I wrote about it the other day is that the ruling didn’t strike down the entire law, it only struck down section 3, which is the part that forbids the federal government from recognizing same-sex marriages performed in states where it is legal.
Why is this important? Because it doesn’t overturn section 2, which says that no state has to recognize same-sex marriages performed in other states. And it’s entirely plausible that the Supreme Court would, as several lower courts have done, let section 2 stay in effect while striking down section 3. Adler writes:
If Section 3 of DOMA is unconstitutional, this does not necessarily mean that state laws barring recognition of same-sex marriages are equally suspect. State governments arguably have interests in the definition of marriage greater than those of the federal government. Family law is the traditional province of state governments and the sorts of interests that can be claimed, such as encouraging traditional family structures for purposes of child-rearing, are more important to state governments than to the federal government. As a policy matter I find such arguments unconvincing, and I support state recognition of same-sex marriage, but it’s not clear to me such interests are necessarily insufficient to justify state policies that prefer traditional family structures.
As a final note, I think Judge Jacobs’ opinion makes it more likely that the Supreme Court will strike down Section 3 of DOMA when this issue finally comes before the Court. Indeed, the opinion provides a roadmap for a fairly minimalist holding against DOMA of the sort the current court might embrace.
He may well be right here. Marriage laws are traditionally a state responsibility. The federal government provides all sorts of rights and protections that attach to marriage, but they did not, until DOMA was passed, determine which marriages that were legal at the state level were to be recognized in determining eligibility for those rights and protections. It’s not at all farfetched for the federal courts to say that the federal government has to accept legal marriages from every state while allowing the states to not recognize same-sex marriages from other states.
And it would not surprise me at all if Chief Justice Roberts and Justice Kennedy agreed with the liberals in a narrow ruling that struck down section 3 while leaving section 2 in place.