States' Rights on Gay Marriage Gains Support in House

Thursday, 30 Jan 2014 06:07 PM

By Jennifer G. Hickey

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A Texas congressman has introduced a novel bill that would protect "states' rights" on gay marriage.

The bill would require federal agencies to consider a person's legal residence when deciding whether to recognize a gay marriage under federal law.

If state law recognizes two people as married, federal law will recognize them as married; if state law does not recognize them as married, federal law will not recognize them as married.

"We do not want to apply Massachusetts law in Texas, any more than Massachusetts wants Texas law applied there," U.S. Rep. Randy Weber, who in January introduced the State Marriage Defense Act of 2014, told Newsmax.

The Texas Republican's legislation currently has 38 co-sponsors and is supported by the Family Research Council, National Organization for Marriage, Ethics & Religious Liberty Commission, U.S. Conference of Catholic Bishops, Concerned Women for America, and Heritage Action.

The congressman acted in the wake of widespread confusion among states on how to react to the Supreme Court's decision last year to strike down parts of the federal Defense of Marriage Act.

In U.S. v. Windsor, the Supreme Court in June discarded the section of DOMA that defined marriage as the union of a man and a woman.

Supreme Court Chief Justice John Roberts counseled the public not to read the ruling too broadly, writing that the "opinion does not decide the distinct question whether the states, in their exercise of their 'historic and essential authority to define the marital relation,' may continue to utilize the traditional definition of marriage."

The ruling has opened the door to a flood of lawsuits from both sides of the gay marriage debate.

Weber said his bill would "provide clarity to federal agencies seeking to determine who qualifies as a spouse for the purpose of federal law.

"This legislation is not about denying anyone the right to marry, but it is a states' rights issue with the goal of helping to clarify the confusion among federal and state agencies."

Since the Supreme Court ruling, a number of lower court judges have cited the Windsor opinion in striking down state laws that restricted gay marriages.

As The New York Times editorial board noted, the Windsor ruling is having a broad impact.

"In recent weeks, federal judges in Utah and Oklahoma have cited Windsor in striking down state bans on same-sex marriage, a federal judge in Ohio ordered the state to recognize same-sex marriages performed elsewhere, and state courts in New Jersey and New Mexico have relied on the ruling to permit same-sex marriages there," the Times observed.

Ryan Anderson of the Heritage Foundation said it is not the actions in the states, but the Obama administration's executive moves that demonstrate the need for Weber's bill.

The Obama administration has intervened in state battles over gay marriage, most notably in January when the Justice Department announced that the federal government would continue to recognize same-sex marriages performed in Utah as legal, even if state officials would not.

Anderson told Newsmax that Weber's bill protects "the sovereign authority of states to recognize marriage as they see fit. It does not say what marriage has to be defined as in any particular state. I do think the Justice Department's decision to ignore the Utah law highlights the need for this law."

The State Marriage Defense Act will "restore proper legal order to the scene and correct the administration's unlawful practice," Notre Dame law professor Gerald Bradley wrote, saying that federal agencies "have no inherent legal authority to define marriage. Neither does the president or his attorney general, so long as Congress has exercised its paramount authority to do so."

The issue is creating controversy in several other states.

In Virginia, Democratic Attorney General Mark Herring has said he would participate in a lawsuit seeking to have a gay marriage ban declared unconstitutional. Several Republican lawmakers are weighing the option of taking action against Herring for misuse of office, while some are pursuing other remedies to preserve the state's prohibition.

And in Kansas, opponents of gay marriage are pressing lawmakers to approve legislation to provide protection for private businesses, such as bakeries, which refuse on religious grounds to provide services related to gay marriages.

Critics have taken issue with Weber's legislation, characterizing it as "limiting recognition of gay marriage."

Huffington Post columnist Luke Johnson maintained the bill would limit the federal government's "power to recognize gay marriages in states," would have the "effect of reintroducing for gay couples some aspects of the federal Defense of Marriage Act," and would undermine Obama administration actions that require "gay married couples in all states to be treated as married for federal tax purposes."

Weber recognizes that some may use his bill to paint Republicans as intolerant, but he said, "It all depends on whether people want to make it an issue. It is a simple bill that plainly seeks to preserve states' rights in these matters."

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