The Holy Wars of Marriage

Introduction

Marriage is a word applied to both ceremonial events and to legal contracts. The nature and form of both have changed through the centuries. Historically, Christian marriage could be a brutal institution, disposed to treat women and children as commodities. Governments took an interest in marriage in order to deal with points of law such as inheritance rights. In the United States today, each state governs its own marriage laws. Legal provisions related to marriage number into the hundreds in each state, and more than a thousand on the federal level. The legal issues surrounding same-sex marriage in the United States are complicated by the nation's federal system of government. In other words, any marriage recognized by a state was recognized by the federal government, even if that marriage was not recognized by one or more other states (as was the case with interracial marriage before 1967).

Throughout U.S. history, the laws of each state have defined marriage. At no time has marriage been defined by federal law. Without exception, since the founding of the Republic, marriage has been a matter of state concern and control. However, on September 21, 1996, Democratic President Bill Clinton signed into law the “Defense of Marriage Act” (DOMA), this legislation authorized states not to give “full faith and credit” to same-sex marriage. Further, it defined marriage for the purpose of federal law as “only a legal union between one man and one woman as husband and wife. The word “spouse,” it asserted, only referred “to a person of the opposite sex who is a husband or wife” (People for the American Way, 1997). . Thus, DOMA banned the possibility of federal government recognition of same-sex couples, should individual states allow their marriage. DOMA did not preclude states from choosing to perform or recognize same-sex marriages; instead it focused on the recognition conditions of marriages performed in other jurisdictions. As Table 2 (see Appendix) indicates, states varied in their response to regulate same-sex marriage suggesting that DOMA was not a definitive statement impacting the sentiments of individual states.

The passage of this bill during an era of Republican ascendancy is unsurprising. In 1996, Republicans had solid majorities in both the House and Senate, and the Democratic president had won with only 43 percent of the vote. Since the mid-1960s, Republicans have opposed extending civil rights to disadvantaged groups at least partly because, as Hillygus and Shields (2008) note, much of the Grand

Old Party (GOP)’s southern strategy was predicated on making race-based appeals to recruit Democratic white southern voters to the GOP as Republicans stonewalled advances in civil rights by propounding “states’ rights” arguments that asserted that these decisions should be left to the individual states (Karol, 2009). States’ rights are a critical component of the U.S. system, and the argument is against overreaching federal powers. What was a surprise was the opposition of leading Democrats to same-sex marriage. Democrats had been the party for the extension of civil rights to virtually all disenfranchised groups whether based on race, ethnicity, gender, or age. On issues of gay rights; however, many Democrats embraced the states’ rights arguments advanced by Republicans to deny civil rights to one of their party’s staunchest allies, the lesbian, gay, bisexual, and transgender (LGBT) community. State legislatures have been deeply involved in the debates about how to define marriage and whether the official recognition of “marriage” should be limited to relationships involving one man and one woman or that same-sex couples should also be entitled to “marriage.” State legislatures have gone both ways in this debate: either enacting “defense of marriage” laws and constitutional provisions in opposition, or going instead in the opposite direction, adopting laws allowing same sex marriage. As demonstrated in Table 1 (see Appendix) State laws and/or constitutional provisions that limit marriage to relationships between a man and a woman were passed by 30 states with constitutional provisions, and by 41 statutory provisions.