George Will: A matter of jurisprudence

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Mar 22, 2013

 

Excerpt: The Defense of Marriage Act is an exception to the rule that a law’s title is as uninformative about the law’s purpose as the titles of Marx Brothers movies (“Duck Soup,” “Horse Feathers,” “Animal Crackers”) are about those movies’ contents. DOMA’s purpose is precisely what its title says. Which is why many conservatives and liberals should be uneasy next Wednesday when the Supreme Court hears arguments about DOMA’s constitutionality.

Conservatives who supported DOMA should, after 17 years reflection, want the act overturned because its purpose is constitutionally improper. Liberals who want the act struck down should be discomfited by the reason the court should give when doing this.

DOMA, which in 1996 passed the House 342-67 and the Senate 85-14, defines marriage for the purpose of federal law as a legal union between one man and one woman. Because approximately 1,100 federal laws pertain to marriage, DOMA’s defenders argue that Congress merely exercised its power to define a term used in many statutes. But before 1996, federal statutes functioned without this definition, which obviously was adopted for the “defense” of marriage against state policies involving a different definition. “Before DOMA,” an amicus brief submitted by a group of federalism scholars notes, “federal law took state law as it found it.”

The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. This subject is a state responsibility, a tradition established and validated by what can be called constitutional silence: The Tenth Amendment says “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.”