State vs. Federal: Why It Matters in the Fight for Marriage Equality by Eleanor Doermann
Many of us believed that passing Marriage Equality in Washington would simplify everyone’s lives by making marriage the same for everyone here. We still have a ways to go to reach that goal, however, in large part because of our dual system of government which allocates authority for different areas of law between our federal and state governments. The balance between state and federal authority has shifted over time. The scope of federal authority increased during and after the Civil War, and continued to do so through the following century, in regulation of interstate business, enforcement of civil rights, and provision of social services.
In recent years, the pendulum has started to move back in towards support for states’ rights. With regards to Marriage Equality, this shift cuts both ways. Family law is traditionally a matter of state law, and each state defines marriage for itself. Hawaii tried to include same sex couples in 1993 when a court there ruled that denying same-sex marriage violated its state constitution. However Hawaiians voters amended their state constitution to ban same-sex marriage while the case was being appealed, and many other states did the same.
The federal government jumped in when Congress passed the federal Defense of Marriage Act (DOMA) in 1996. DOMA defined marriage for all federal purposes as only between one man and one woman. Congress claimed that DOMA was a necessary and proper law for the federal government to carry out its authority to tax. DOMA was the law of the land for 17 years, impacting over 1000 legal marriage rights governed by federal law. Then in 2013, the Supreme Court in U.S. v. Windsor struck down Section 3 of DOMA, ruling that it was an unacceptably sweeping expansion of Congressional power into the states’ authority to define marriage. Windsor left intact Section 2 of DOMA, which allows non-recognition states to disregard same-sex marriages granted in other states, consistent with the Court’s support for states’ rights.
Because of this, members of the LGBT community now face a tangled array of rules and regulations which government agencies are adding to on a regular basis, as they apply the Windsor ruling to their own rules and regulations. Making sense of the rules is easier in a recognition state such as Washington, but even so, the new rules are being applied in many cases for the first time, and they do not always account for the varied circumstances of LGBT family life.
It seems only universal Marriage Equality can fix this situation, but in the current judicial climate favoring states’ rights it remains to be seen how long it will take before there is a such a critical mass of recognition states that the federal government sees no other option. In the meantime, Marriage Equality marches forward, state by state, with the hope that this time will be soon.
Disclaimer: This information is for educational purposes only and is not a substitute for competent legal advice from a licensed, professional attorney regarding your specific situation.
Eleanor Doermann is an attorney providing estate and life planning services for all ages and stages of life, and public benefits advocacy. As a long-time member of the Seattle LGBT community, she has a special interest in and passion for educating individuals and couples about the ramifications of post-DOMA marriage equality law. Eleanor came to the practice of law after a 25-year-career as a physical therapist. She opened Pathway Law, PC in south King County in 2013. You can learn more at www.pathwaylaw.net or by calling 206-499-3289.