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Reconciling Windsor, DOMA, and State Marriage Policy: The State Marriage Defense Act

On Thursday, Texas Congressman Randy Weber introduced important federal legislation designed to help clarify state authority in crafting state marriage policy. This comes in the wake of the U.S. Supreme Court overturning section three of the Defense of Marriage Act (DOMA). The federal legislation, the State Marriage Defense Act of 2014 (H.R. 3829), seeks to resolve legal unknowns by mandating that the federal government recognize marriages based on where a couple resides, not where their wedding was performed or celebrated.

This analysis is available in a downloadable PDF.

In the Windsor decision, the Supreme Court tried to rectify the following situation: Edith Windsor was considered “married” to her lesbian partner in her state of residence, New York, and filed taxes accordingly. But the couple’s “marriage” was not recognized for tax purposes by the federal government. Edith Windsor sued the federal government on the grounds that the “death tax” on her deceased partner’s estate was discriminatory against her, both the heir and spouse. The Court ultimately sided with Windsor.

Rep. Weber’s bill would require the federal government to levy taxes based on the marriage law of New York, which happens to recognize same-sex marriage, but not permit federal agencies to presume same-sex marriage upon states where it is not recognized. Moreover, while striking down section three of DOMA, the Windsor decision did not create a definition of marriage for the federal government.

In the fall out from Windsor, the question of whether the federal government would recognize same-sex marriage was resolved, but the federal government’s jurisdiction on how it would recognize same-sex marriage and the larger question of state authority in making marriage policy, remains unanswered. Whose definition of marriage wins the day? In the absence of federal definition, many people believe that a state’s definition should be the basis for assigning federal benefits. The legislation by Weber would mandate that the federal government recognize the legal status of the relationship based on where the couple resides, not the location of where a same-sex ceremony was performed.

In the wake of administrative regulations handed down by the federal government, the State Marriage Defense Act asks that the federal government respect the authority of the states in creating marriage policy. The bill restores a modicum of judicial balance by signaling the importance of states in determining what is or isn’t a marriage. Dr. Barrett Duke, the ERLC’s Vice President for Public Policy and Research commented on the proposed legislation:

“Our country and our courts will soon experience a chaotic clash of marriage laws and regulations. At this time, the federal government is not capable of responding to the situation developing in the states. The Weber bill will provide crucial guidance to policymakers and agencies at the federal level as states and concerned citizens attempt to navigate the crumbling landscape of marriage in the country.”

In commenting on his rationale for the bill, Weber said:

“The 10th Amendment was established to protect state sovereignty and individual rights from being seized by the Federal Government. For too long, however, the Federal Government has slowly been eroding state’s rights by promulgating rules and regulations through federal agencies.

“I drafted the “State Marriage Defense Act of 2014” to help restore the 10th Amendment, affirm the authority of states to define and regulate marriage, as well as, provide clarity to federal agencies seeking to determine who qualifies as a spouse for the purpose of federal law. By requiring that the Federal Government defer to the laws of a person’s state of legal residence in determining marital status, we can protect states’ constitutionally established powers from the arbitrary overreach of unelected bureaucrats.”

Relevant text from Weber’s bill reads:

Sec 2 (4) Congress recognizes that current actions by the Federal Government to afford benefits to certain relationships not recognized as marriages by a person’s State of residence go beyond the Supreme Court’s ruling in United States v. Windsor. These Federal actions create “two contradictory marriage regimes within the same State,” in direct contradiction of United States v. Windsor.

(5) Actions taken by the Federal Government to grant recognition of marital status for persons not recognized as married in their State of domicile undermine a State’s legitimate authority to define marriage for its residents.

[…]

Sec 3, § 7 “[…] as applied with respect to individuals domiciled in a State or in any other territory or possession of the United States the term ‘marriage’ shall not include any relationship which that State, territory, or possession does not recognize as a marriage, and the term ‘spouse’ shall not include an individual who is a party to a relationship that is not recognized as a marriage by that State […]”

Almost a decade ago, the ERLC called for passage of an amendment to the U.S. Constitution that would define marriage as the union of one man, one woman. That effort included handing out a statement on the subject at the 2004 Annual Meeting of the SBC in Indianapolis. At the time, the ERLC was told by numerous policy makers that the proposed amendment was unnecessary and contrary to principles of federalism. Today, 18 states have implemented same-sex “marriage” and Rep. Weber, et al are now forced to rely on the principles of federalism to defend against an encroaching federal government that would impose a lie about the nature of marriage.

In the absence of a constitutional amendment that tells the truth about what marriage is, the best opportunity to protect marriage is to preserve the democratic process throughout the states, enabling citizens to make marriage policy. If marriage cannot be protected federally, it should be left in the hands of those best equipped to decide marriage policy: citizens.

Southern Baptists will be pleased to know that many of the members of Congress leading on this legislation are Southern Baptists. The bill’s author and sponsor Rep. Weber himself is Southern Baptist, as are 8 of the 27 original cosponsors: Jim Bridenstine (OK-1), Mike Conaway (TX-11), John Fleming, M.D. (LA-04), Bill Flores (TX-17), Louie Gohmert (TX-01), James Lankford (OK-5), Randy Neugebauer (TX-19), Daniel Webster (FL-10).

Citizens who believe that marriage is between one man and one woman; and citizens who simply wish to defend the right of their state to define marriage policy, are encouraged to support this legislation. If the representative of your respective district is not listed as a cosponsor, please ask them to cosponsor H.R. 3829, The State Marriage Defense Act.

This analysis is available in a downloadable PDF.

Resources

Andrew T. Walker

Andrew T. Walker is Associate Professor of Christian Ethics at The Southern Baptist Theological Seminary and a Fellow with The Ethics and Public Policy Center. Read More

Matthew T. Hawkins

Matthew T. Hawkins is a former policy director of the  ERLC. He is presently pursuing a Ph.D. in public theology at Southeastern Baptist Theological Seminary, and serves as chair of The One America Movement, a nonprofit that desires to build a united American society by eliminating toxic polarization. More information … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24