Thank you, readers, for your comments. One of you has asked what The Discreet Traveler thinks about the irony that same-sex marriage is now recognized by the U.S. government, but not by many state governments. The bewildering array of state laws and the layers of state vs. federal government confuse even Americans. But never fear—TDT is here to be your guide.
The clue to American history is in the name of the country: The United States of America. Historically, the nation was a federation of states, former British colonies, and the individual states have been very wary of ceding their powers to the federal government. The U.S. Constitution, minimally amended since 1789, clearly lays out the powers of the states, including any government power not explicitly granted to the federal government. This is why, for example, the upper house of Congress (the Senate) has two senators from each state, no matter the relative size or population of the states.
If you’ve seen enough American movies, you’ll have seen wedding scenes where the minister, or other officiant, says, “By the power vested in me by the State of New York—” or wherever. States are responsible for most family law, including marriage licenses. And those jurisdictions’ laws vary. Nevada, for instance, famously has no residency or advance requirements for getting married in that state, hence all those movies with impulsive Las Vegas weddings.
In a sense, there is no national U.S. law recognizing marriage. The U.S. simply recognizes marriages that have been performed in various jurisdictions, whether those are states, territories, or outside the U.S.
The federal government rarely intervenes in the definition of marriage, but on certain historic occasions, it has. One was in 1967, the Supreme Court ruling Loving v. Virginia. In this case a loving couple—famously named Loving—sued Virginia for sentencing them to prison for the crime of marrying each other. Because Richard Loving was a man classified as “white” and Mildred Loving a woman classified as “colored” by the state*, Virginia said their marriage was illegal, even though they had been married in a different jurisdiction (Washington, D.C.)
The U.S. Constitution has another important principle, which is that a contract under the law of one jurisdiction is binding in all other states—a principle that Virginia was clearly violating. The case went to the judicial branch of the federal government, the Supreme Court, which ruled that “anti-miscegenation” laws such as Virginia’s were racist, and that people’s right to marry could not be infringed by the state in such a way. Those laws still on the books in other states became unenforceable, because interracial marriages were now recognized at the national level.
Loving v. Virginia is an enormously important precedent for marriage equality, and in recent years Mildred publicly pointed this out herself (Richard died in 1975). But the legislative and executive branches of the federal government overstepped their constitutional bounds in 1996. That year, Congress passed the “Defense of Marriage” Act, and President Clinton signed it into law. DOMA’s section 2 says that no state is required to recognize a same-sex marriage performed by another state. Section 3, the part that was ruled unconstitutional in 2013, said that the federal government only recognizes “marriage” as meaning between a man and a woman, and only recognizes “spouse” as meaning someone of the opposite sex.
(If you think section 2 sounds at least as unconstitutional as section 3, you have a point! States are required by the Constitution to recognize each other’s contracts, but the Supreme Court did not address this issue in the 2013 ruling. We’ll get back to this.)
In 1996 when DOMA was passed, no state allowed same-sex marriage; the law was a pre-emptive measure. But then same-sex U.S. couples began getting married in other countries, notably Canada from 2003. Historically, a couple married elsewhere in the world is considered married in the U.S. without having to get married all over again, but DOMA made same-sex couples an exception. And from 2004, individual states, beginning with Massachusetts, began issuing marriage licenses to same-sex couples too.
Suddenly, couples found themselves married for state purposes, but not federal. This created some absurd situations. For example, most states have state income tax, meaning Americans have to file both a federal tax return and a return for their state. The state taxes are based on the federal return, so the federal has to be filled out first. But because of DOMA, a person in a state with same-sex marriage had to fill out her federal tax return (according to which she was not married), followed by a “phantom” federal return as if she was married, in order to be able to complete her state tax return according to which she was married!
When the Supreme Court overturned section 3 of DOMA one year ago, all that changed. Now, if you’re married anywhere the federal government (including for tax purposes) agrees that you are. Essentially, the burden of deciding who is married was shifted back to the states, where it always belonged. But because the Court ruling did not overturn DOMA section 2, states can still refuse to recognize each other’s marriage contracts. There is as yet no national requirement to recognize same-sex marriages everywhere, as with Loving v. Virginia.
This leads to the absurdity of a cross-country trip where a couple is or is not married, every time they cross a different state line. To be sure, this is better than the previous situation, where a state could grant a marriage license but it didn’t have any federal “teeth.” Most notably, because immigration law is a federal matter, it makes all the difference to binational couples that the federal government now recognizes them as married. And if an American couple still lives in a state that doesn’t recognize their marriage, it is a lot more feasible for them to move to a friendlier state than it is to emigrate to another country!
It’s an absurd situation, but a familiar one from U.S. history. Black citizens used to have to worry about “Jim Crow” segregation laws when they crossed into certain states. Before that, of course, was the even more infamous era of “slave” vs. “free” states, where on one side of a state line a black person was just property, to be captured and returned to his owner or sold.
The shifting legal balance isn’t necessarily a social one. I don’t remember Canada in 2003 having a province-by-province fight, or demonstrators claiming that same-sex marriage would destroy the Canadian way of life. (In my view, it is the Canadian way of life.) But the U.S. is a very different country. At one level, it's fifty different countries.
The states, and the American people, remain far from united.
*Although Mildred Loving is often referred to as a “black woman,” she was in fact of mixed African–American and American Indian descent (Rappahannock nation). The point was that it mattered to Virginia that she wasn't white.