Same sex Marriage and Federalism

The Constitution’s “full faith and credit” clause requires each state to recognize the others’ laws, records, and judicial proceedings. Under this clause, you can use your home-state license to drive anywhere in the country. If you successfully sue someone, that person cannot escape the judgment by moving because it is enforceable in out-of-state courts. The clause also allows Congress to “prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” 

In 1996, reacting to the prospect that some states might legalize same-sex marriages, Congress passed and President Clinton signed legislation specifying that other states need not recognize such marriages. Supporters of the Defense of Marriage Act cited this clause as their constitutional basis. Opponents said that Congress may only set out procedures for carrying out the “full faith and credit” clause, not make exceptions.

 In 2003, a Massachusetts court ruled that the state’s constitution required official recognition of same-sex marriages. Some conservatives sought to amend the U.S. Constitution to stop same-sex marriages. Liberals objected to the proposal, saying that it violated the principle of federalism. “I, like everyone else in the Senate, took an oath when I joined this body to support and defend the Constitution,” said Russ Feingold (D-WI). “The Framers of our Constitution granted limited, enumerated powers to the Federal Government, while reserving the remaining powers of government, including family law, to State governments.” Conservatives replied that marriage had long been a matter of federal jurisdiction. They cited nineteenth-century laws banning polygamy in territories and twentieth-century court rulings striking down state laws on marriage and divorce.

 The Defense of Marriage Act has prompted similar lines of argument, with conservatives supporting federal action and liberals supporting states’ rights. Yet when federal courts overturned California’s ban on same-sex marriage, the two sides switched places, with conservatives saying that the rulings violated states’ rights and liberals defending the courts’ actions as an appropriate exercise of federal power. In criticizing the Defense of Marriage Act, President Obama said that marriage was a matter for the states, although he also opposed the California law. When he endorsed same-sex marriage in 2012, he said: 

At a certain point, I’ve just concluded that—for me personally, it is important for me to go ahead and affirm that—I think same-sex couples should be able to get married. Now—I have to tell you that part of my hesitation on this has also been I didn’t want to nationalize the issue. There’s a tendency when I weigh in to think suddenly it becomes political and it becomes polarized. . . . And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.