Article  Human Dignity  Life  Marriage and Family  Religious Liberty  Religious Liberty

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.


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