Recanting Faux Federalism

I recant.  My last post was flawed.  Let me clarify.

I stand by my position that Proposition 8 should be upheld on the grounds of Federalism.  I also reaffirm that the question of who can define marriage is at the heart of  U.S. v. Windsor – not the definition of marriage itself.  My argument went awry in discussing DOMA and suggesting that it too runs contrary to federalism.  Well, folks, I was wrong.  Here’s why:

DOMA, as a federal statute, applies only to federal matters – notably tax and immigration policy.  Both are ordained for federal management by the enumerated powers in Art. 1, Sec. 8 of the Constitution.  Marriage is highly relevant to federal tax policy.  Likewise for immigration policy since the Hart Celler Act of 1965.  In order to make its own policy coherent, then, the federal government does need a definition of marriage to operate under.  Yes, this brings us to the Elastic Clause.  The federal government’s powers must be stretched to include defining marriage to be able to carry out the powers it was enumerated i.e. to tax and to naturalize citizens.

Why can’t the federal government simply accept the definition that the states decide on themselves?  John Eastman handles this one rather handily in his rebuttal of the “Faux Federalist” argument:

The Windsor case arose because the federal court in New York anticipated that New York would recognize a lesbian marriage lawfully performed in Canada. But suppose New York also decided to recognize a polygamous marriage lawfully performed in Saudi Arabia, after the multiple spouses took up residence in New York. Would the federal government be obligated to pay out social security survivor benefits to multiple spouses upon the death of any one of them, because “federalism” required it to take New York’s law “as it found it”? And would it then be able to cut off those benefits if those surviving spouses all moved to North Carolina, which did not recognize the polygamous marriage? Of course not. DOMA does nothing more than retain the understanding of “marriage” that existed when that word was used in over 1100 federal statutes adopted prior to the same-sex assault on the traditional understanding.  (The Christian Post)

Indeed.  Manifold problems would arise in matters of taxes and social security were the states’ respective definitions of marriage adopted in lieu of a federal definition.  And then there is immigration.  Family reunification is given a certain preference under current immigration policy.  This assumes a notion of what a family is.  Family is a maritally-created institution.  Determining preference in immigration policy also necessitates a definition of marriage.  Thus, there is a clear need for a federal definition of marriage.

This does not violate Federalism whatsoever.  Eastman writes:

DOMA does not force states to accept the federal definition of marriage. That would indeed run afoul of federalism principles. But it does prevent any single state from forcing its definition on the federal government (Section 3), or on any other state (Section 2). That allows each state to chart its own path, as federalism requires, but it does not allow any state to chart a path for the rest of the country. That is federalism as it should be.  (The Christian Post)

So therefore, I recant.  DOMA should be upheld.  My basic observation about the question underlying the two relevant Supreme Court cases remains:  the definition of marriage is not relevant; who can define it is all-important.  Marriage should not be defined by the Court.  That would flaunt the democratic principle.  Or it would be downright ridiculous (a great April Fools’ Day joke, by the way).  This issue must be settled by the people in legislation such as DOMA.

I hate being wrong.  But I’d rather be right.  So thanks to Jacob Reses, Carl Bankston, and Margaret Fortney for setting me straight on this one.  Comments are always appreciated.  Because if a better case is to be made, I’ll roll with it.  After all, that’s what the rational person should always do.