Today marks the 226th anniversary of the U.S. Constitution, which established a system of government granting some powers to a federal government and reserving powers to the sovereign states that make up the union. The relationship between the states and the federal government defines this nation's political uniqueness. But this balance is now being threatened by confusion about marriage.
In the United States, 13 states and the District of Columbia now issue marriage licenses to individuals of the same gender. In 35 states, including Utah, legislators or citizens have passed laws or have amended their state constitutions to define marriage as a union of one man and one woman. (Two states, New Mexico and New Jersey, neither recognize nor prohibit same-gender marriages.)
But the president is beginning to place marriage under federal administrative control. The Treasury Department took the recent Windsor v. United States Supreme Court decision as a reason to require states to accommodate tax filings by individuals with same-gender marriage conducted in another state. Similarly, the Health and Human Services Department declared that health care facilities accepting Medicare in payment must provide benefits to individuals in same-gender marriages, even in states that recognize marriage by its traditional definition.
It helps to think about the constitutional dilemma over marriage as two separate conflicts. The first conflict is Congress versus the administration on matters of federal policy. This concerns how state-granted marriage licenses should be treated under federal law. The Constitution calls for legislative powers to be vested in Congress. It also says the president shall faithfully execute those laws. The administration failed to legally defend an act of Congress, the Defense of Marriage Act. The Supreme Court sided with President Obama, and not with Congress.
The second conflict pits the states themselves against the federal government. This doesn't concern federal recognition of a state-granted marriage license, but about state marriage laws themselves. The right of sovereign states to pass laws or amend their constitutions in support of marriage as a union of one man and one woman is needlessly at risk.
But what's happening now is that the federal government is using Windsor v. U.S. as an excuse to create a new form of federal marriage relationship encompassing a man and a man, or a woman and a woman. As a result, states affirming their long-established role in recognizing husband-and-wife marriage are being placed on the defensive.
This does not need to happen. On tax policy, for example, the Treasury Department could have put forward a "state of residence" standard. The Tax Foundation states, "The concept of physical presence is tightly connected to tax and spending policy. Taxpayers pay income taxes, sales taxes, property taxes, and other taxes based on where they are when assessed, and taxpayers receive benefits based on which state they live in." But the administration chose to impose its view of marriage across the nation.55 comments on this story
"The federal government should look to each state's definition of marriage as governing for federal law," concludes the Heritage Foundation. "A bad Supreme Court ruling should not allow federal bureaucrats to redefine marriage across America."
The Constitution preserves a system of government that reserves power to the states and to the people. As the nation navigates conflicting feelings and emotional views about the proper role of marriage under state law, its leaders must be wise and allow federalism to work. The federal government must not undermine what is best for children and the future of the nation.