Why DOMA is a Federal Government Overstep

In 2004, Massachusetts legalized same sex marriage, an action which conflicted with the federal government’s definition of marriage as "between a man and a woman" for purposes of federal expenditures and certain regulations. As a consequence, the federal government did not recognize same-sex marriage as granted by the people of Massachusetts and the two sides went to court.

In early July of 2010, the government lost this suit when a federal judge in Massachusetts declared that the federal government’s Defense of Marriage Act (DOMA) was unconstitutional because its mandated definition of marriage usurped states’ constitutional right to govern themselves.

Refusing to accept the judge’s decision as final, the Department of Justice (DOJ) appealed that decision in January, arguing that the federal government should retain unchallengeable authority to tell states how to define marriage because to allow otherwise would over-complicate the federal government’s compensation and regulatory programs.

If this argument sounds like a stretch, that’s because it is. The government bases its argument in a vaguely worded paragraph buried deep within the Constitution called the Spending Clause. The Spending Clause gives Congress the power to levy taxes and to use that money to pay for the “common defense” and the “general welfare.” It does not give the federal government the power to definitively define marriage in order to avoid the “hassle” of the states’ exercising their constitutionally protected right to legislate their own rules.

The Tenth Amendment reserves powers not explicitly delegated to Congress to the states. While the “state’s rights” flag is often waived in questionable and unrelated situations, this issue is a clear-cut example of the separation of powers inherent in our Constitution. The government is claiming that, because federal money is being spent on federal benefits, the federal government has the power to define the institution of marriage and overrule the democratic will of the people in order to make its jobs easier and its regulations more uniform.

This reading of the Constitution is flawed. In fact, the Founding Fathers explicitly addressed these slippery slope arguments when writing the Constitution. In a letter, James Madison noted that reading the Spending Clause in “a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators,” and that “[i]f Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one”. Similar sentiments can be found among the writings of Thomas Jefferson and Alexander Hamilton, to name a few, all warning that the clause cannot be read in such a way as to negate the rest of the Constitution.

Unfortunately, this is exactly what the Department of Justice is trying to do in the present case. By arguing that once the federal government starts spending money on an issue, that expenditure transfers the power to regulate and legislate entirely to the federal government, the DOJ contravenes the very separation of powers that preserves some form of limits on our central government.

Just as many states have chosen to define marriage as between a man and a woman, Massachusetts and a handful of other states have chosen to reject that definition and forge ahead with their own. The Department of Justice seeks to overturn these democratic decisions because they might make the distribution of benefits more difficult for the federal government.

The Massachusetts judge that heard the case squarely and properly rejected this reading of the Constitution. Upholding the government’s argument would create a slippery slope that would quickly lead to absurd results and unlimited power. The federal government’s desire for a uniform definition of marriage does not trump the constitutional separation of powers preserved in the 10th Amendment and should be rejected by the Court of Appeals for the same reasons it was rejected by the District Court.

Photo CreditWikimedia Commons

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Mark Kogan

Mark is a lawyer and Mic contributor living in Washington, D.C.

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