Marc Landry: States rights and same-sex marriage

July 16, 2013 

The Defense of Marriage Act was enacted in 1996 by wide majorities of both houses of Congress and was signed into law by President Clinton the same year.

Section 3 of the law is clear and unambiguous.

It says that in determining the meaning of any act of Congress – or of any ruling, regulation or interpretation of the various administrative bureaus and agencies of the United States – the word “marriage” means only a legal union between one man and one woman as husband and wife and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.

At the time, no state or territory recognized same-sex marriages.

While it has been only 17 years since the enactment of DOMA, the times are changing, and same-sex marriages are now recognized by 13 states, the District of Columbia and five Native American tribes.

The spouses in Windsor v. United States were Edith Windsor and Thea Spyer, who married in Ontario, Canada, in 2007. They were residents of the state of New York, and the state recognized their marriage as valid.

When Spyer died, she left her estate to her spouse, and Edith Windsor claimed a married exemption on the estate tax return. The exemption was denied because of DOMA, and Windsor paid $363,053 in estate taxes as a consequence.

Windsor brought a lawsuit to recover the estate taxes and was successful at all levels, including at the U.S. Supreme Court, which recently released its decision.

The dissenting minority would have granted the appeal and denied the married exemption on a technical ground.

After the lawsuit was initiated, the Department of Justice decided that it would no longer defend the constitutionality of DOMA. The DOJ essentially agreed with the plaintiffs, and the dissenters would have held that the court had no jurisdiction to hear the appeal as there was no longer a proper lawsuit. Both parties were on the same side of the issue.

However, majority rules, and in the judgment of the court delivered by Justice Anthony Kennedy, the court recognizes that by both history and tradition, the definition of “marriage” has been treated as being within the realm and authority of the states.

Justice Kennedy cited a case that held that the regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the states.

Thus, if states allow same-sex couples to marry or recognize same-sex marriages, Section 3 of DOMA deprives the parties to such unions the benefit of federal laws and statutes and is thus unconstitutional. So said the court.

Now, North Carolina’s Attorney General has decided to allow the ACLU to amend an existing lawsuit to challenge the constitutionality of our state’s definition of marriage.

If DOMA is unconstitutional because states have the right to define domestic relations, including marriage, does the same argument not give N.C. the right to define the marriage of one man and one woman as the only domestic legal union in our state?

To argue otherwise would seem to fly in the face of the very rationale of the Supreme Court in deciding Windsor v. the United States.

No one argues that the N.C. constitutional amendment was not put properly on the ballot.

The amendment to our state constitution was approved by a wide majority of voters. In fact, 61 percent of voters voted for the amendment, and it is now a part of our constitution. The amendment didn’t change existing law, so we are neither no better off nor worse off.

I agree with the decision of the attorney general because the ACLU and the state are already before the federal court in Greensboro in a case where the issue is recognizing unmarried couples as equal parents.

If the court were to deny the motion, the issue of the validity of our constitutional amendment would undoubtedly reappear in another lawsuit, and it has to be cheaper and more efficient to have these issues tried together.

Same-sex marriage is an issue that is not going way, and I suspect the Supreme Court will eventually be called upon to provide more answers.

Contributing columnist Marc Landry can be reached at

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