The Obama Administration, Marriage, and the States
by Ryan T. Anderson, Heritage Foundation, August 29, 2013
Just as families are getting ready to head out the door for a long holiday weekend, the Obama Administration has rolled out new policies that disregard states’ authority over marriage and redefine marriage for a variety of federal purposes.
The U.S. Department of the Treasury and the IRS and the Department of Health and Human Services put out press releases today announcing they’ll be recognizing same-sex marriage even in states that define marriage as the union of a man and a woman.
The agencies announced that they will recognize same-sex couples as married provided that they were married in states that have redefined marriage, even if they now reside in states that retain the historical definition of marriage. As Treasury and IRS put it, “The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.”
The Obama Administration’s actions today go beyond the scope of the U.S. Supreme Court’s Windsor decision. Justice Anthony Kennedy’s majority opinion in that decision clearly states that marriage law is the purview of the states: “[T]he definition and regulation of marriage has been treated as being within the authority and realm of the separate States.” The Obama Administration has chosen not to respect state policy on this and is further eroding the meaning of marriage.
This of course highlights one reason why the federal definition of marriage contained in Section 3 of the Defense of Marriage Act (DOMA) was necessary and why it was a bad decision for the Supreme Court to strike that section. Just as the states have constitutional authority to make state policy about marriage, so too the Supreme Court should have ruled that Congress has constitutional authority to pass a federal statute defining the term for federal programs created by federal law.
A Tax Foundation analysis points out further problems with the Administration’s announcement regarding tax filing:
The concept of physical presence is tightly connected to tax and spending policy. Taxpayers pay income taxes, sales taxes, property taxes, and other taxes based on where they are when assessed, and taxpayers receive benefits based on which state they live in.
The piece goes on to point out that this will cause problems for the states that retain the definition of marriage as the union of one man and one woman. The federal government recognizing out-of-state same-sex marriages “will present challenges in compliance and enforcement that would not occur under a ‘state of residence’ standard.”
Given the Supreme Court’s ruling on Section 3 of DOMA, the federal government should look to each state’s definition of marriage as governing for federal law. This respects both federalism and democratic self-government. A bad Supreme Court ruling should not allow federal bureaucrats to redefine marriage across America for their agency.
We should work to defend the rights of all Americans to make marriage policy. And we should promote the truth about marriage between a man and a woman and why it matters for children, civil society, and limited government.