Within 24 hours of the Supreme Court striking down Section 3 of DOMA, marriage equality advocates and much of the media started bemoaning the patchwork nature of the federal marriage recognition that we are left with now that the federal government has gotten out of the business of defining marital status for itself. Now, the federal government will honor state determinations of marital status, but what happens if those state determinations differ? What of the same sex couple that gets married in Iowa and moves to Oklahoma? We may not know immediately whether the federal government will honor their marital status. Horrors! Such confusion! Such inconsistency! What a legal mess?
Hardly. This legal mess is, after all, just what the plaintiffs in Windsor asked for. As of Tuesday, June 25, the day before the Supreme Court issued its rulings, uniformity and consistency were the arguments used by the defenders of DOMA. It was the need for uniform federal treatment of same sex marriage that explained why Congress acted rationally and sensibly in drafting DOMA, argued the losing side. The Court said no—notwithstanding the order and consistency that DOMA imposed on federal policy, it was too big a departure from traditional federal deference to state determinations of marriage, too much of a burden on one particular class of married people, and too much of an interference with the important institution of marriage.
So by Thursday, June 27, uniformity and consistency had become the arguments for the other side. Progressive forces fighting the next battle, for a federal constitutional right to same sex marriage, are now arguing that uniformity and consistency are essential. But that is only because progressive forces now feel comfortable that the substantive law is trending in their direction. Uniformity is only worth fighting for if one likes the law that will become uniform. From 1996 until probably last November (when same sex marriage initiatives first began to prevail over conservative efforts to define marriage as between a man and a woman), uniformity was the last thing progressive forces wanted. (more…)