Short-sighted: A Critique of Dale Carter's Argument Against a Federal Marriage Amendment

Dale Carpenter, associate professor at the University of Minnesota Law School, published a revised article this week on the Cato Institute’s Web site arguing four major reasons why a federal marriage amendment. In his article, Professor Carpenter argues that even people who oppose same-sex marriage as a matter of public policy shouldn’t support the federal marriage amendment.

Carpenter cites several governmental safeguards that he claims remove the need for a constitutional amendment defining traditional marriage. Like most of his arguments, his points are accurate over the short term. But proponents of a federal marriage amendment are not concerned with defining marriage for the next five years. They seek to define marriage between one man and one woman permanently. Marriage amendment proponents oppose eventual recognition of same-sex marriages just as much as immediate recognition.

Carpenter argues that the structure of our government is well-equipped to deal with “judicial activism” from state courts, and that if any jurisdiction should recognize same-sex marriages, the issue should be dealt with within that jurisdiction. I see several problems with these arguments. First, marriage amendment proponents anticipate the possibility of federal courts recognizing same-sex marriages, not just state courts. Second, amendment proponents anticipate that same-sex marriages recognized in one jurisdiction may eventually be recognized in all jurisdictions. Carpenter doesn’t believe this is possible “in the foreseeable future,” but I think he’s being a little short-sighted in his predictions. Here’s how I see it could happen.

Most agreements or contracts made in one state are recognized in all other states through the Full Faith and Credit Clause of the Constitution. Under this doctrine, a same-sex marriage effected in Massachusetts would have to be recognized in any other state. However, as Carpenter points out, the Defense of Marriage Act of 1996 defines marriage as “a union between one man and one woman” (1 U.S.C. § 7) and prohibits any state or territory from recognizing any relationship between members of the same sex as marriage (28 U.S.C. § 1738C). Carpenter concludes that a constitutional amendment is therefore unnecessary and unwarranted, and same-sex marriage issues should be dealt with on a state-by-state basis.

However, I see the strong likelihood that the Defense of Marriage Act will eventually be struck down as unconstitutional. I am unaware of any major challenges to the DOMA, but it is only a matter of time.* Circuit courts have side-stepped the issue, but eventually they will receive a case challenging the DOMA on grounds that it violates the Full Faith and Credit Clause, the Due Process Clause, and the Equal Protection Clause. While the latter two arguments are somewhat weaker, I think the Defense of Marriage Act could eventually be struck down. When that happens, same-sex marriages recognized by one state must be recognized by all, essentially granting de facto recognition of same-sex marriages in all jurisdictions. I think Carpenter is somewhat disingenuous when he claims that states are adequately equipped to consider same-sex marriage on an individual basis. States may be able to regulate this activity now, but it might not be long before state-by-state regulation becomes impossible.

Professor Carpenter’s arguments are interesting. I found his federalism arguments particularly persuasive. But I feel that his analysis is a little sloppy and short-sighted, particularly with respect to individual state regulation. Carpenter repeatedly asserts that proponents of a federal marriage amendment are worried about “hypothetical” cases. However, cases challenging the Defense of Marriage Act are real, and the circuit courts won’t dismiss them on technical grounds forever. Carpenter’s “short term” analysis is good for just that – the short term.

* Cases such as Smelt v. County of Orange and Mueller v. Commissioner of Internal Revenue were dismissed on grounds of standing and other technicalities and not on the merits of the cases. The only direct challenge to the DOMA is found in Wilson v. Ake, which was criticized in Smelt.

Update: For a critique of each of Carpenter's main points, see this article entitled "Law Prof's Paper Gets an F." I started to pick each point apart, but by the time I was done I had a couple pages of notes and I decided to just focus on the problem with scope.