Three states where members of the clergy and justices of the peace today marry gay couples argued on Friday that it’s a violation of states’ rights for the federal government to then “unmarry” those people under the 1996 Defense of Marriage Act (DOMA).Read the rest here.
In an amicus brief to a New York case involving a lesbian widow, Vermont, Connecticut, and New York argue that the federal government had no right, despite the federal designation of marriage as being between a man and a woman, to demand $350,000 in estate taxes when Edie Windsor’s partner died. That would not have happened under a marital tax deduction that lets other married couples pass their assets to their spouse without penalty.
The three states who filed amicus briefs argue that states regulate marriage and family relationships and that Congress doesn’t have constitutional authority to interfere with that license at any level.
I think they are right purely on the legal and constitutional points. This is a tenth amendment issue. No where does the constitution give Congress any power over marriage. Of course the smart thing to do (which by definition means it won't happen) would be for the states to expunge the word "marriage" from the legal code and replace it with "civil union" for everyone. Leave marriage for religious institutions and let the state provide for the regulation of voluntary contractual unions for the purposes of benefits and the like.