Marriage Myths, Pt. 2: Leave it to the States

I’ve been meaning to get back to this series, looking at the arguments that Democrats use to deny marriage equality. A few weeks ago I talked about the first myth, that marriage is a religious institution.

A second common excuse used by Democrats is captured in this quote from Hillary Clinton:

“I think that this is a matter that historically has been left to the states because that’s where decisions like these are made.”

The justification here is that legal marriages are granted by the state, not the federal government. Furthermore, definitions of marriage vary from state to state, so that age limits or blood tests requirements will be different depending on what state you get married in. So yes, to an extent, marriage laws have historically been left to the states.


Even though it’s left to the states to determine who can get married in their state, under the principles of comity, states also agree to recognize the marriages from other states. So, for example, in Mississippi you must be 21 to be married without parental consent, but a 19-year-old who got married in another state where 18 is the age limit could move to Mississippi and still be considered married.

This is to avoid the situation the Lovings faced in the 60s when they were legally married in D.C., but became criminals when they moved a few miles to Virginia which still considered interracial marriage illegal.

Furthermore, not only do other states recognize marriages from a state, but the federal government also recognizes those marriages granted by the states. So while you may be married by the laws of the State of Missouri, the federal government recognizes that marriage as well.

For Senator Clinton and others to say that it’s up to the states is a half-truth. It’s up to the states, but then also up to other states and the federal government to recognize that state’s marriages.

So what happens when a state like Massachusetts decides that it will grant marriages to same-sex couples? Following the “leave it to the states” logic, that should be enough, right? But it’s not. Because other states don’t recognize those marriages. And, perhaps more important, the federal government does not because such recognition is banned by the Defense of Marriage Act signed by none other than Senator Clinton’s husband.

How is it up to the states if the federal government bans it?

The federal government certainly isn’t leaving it up to Massachusetts to make decisions. A same-sex couple married in Massachusetts may enjoy rights granted by the state, but they will be denied the “1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges” as reported by the Government Accounting Office.

That couple may be married in Massachusetts, but they will not be recognized as married by Social Security and thus won’t receive the Social Security benefits another spouse would. They will also have to pay federal taxes on health benefits (if they’re lucky enough to receive them) for their family when other families are exempt from those taxes. They will not be recognized as a family by immigration laws the way other couples are so if one of them is not a citizen they may not be able to live in the same country together.

For candidates for President to say “leave it to the states” is a cop-out. They know that it’s not up to the states alone, but they’re hoping no one will notice and let them get away without taking a stand.

But the federal government, through DOMA, has taken a stand. The ball is in the candidates’ court.

I hope the next time this topic comes up in a debate, the moderators don’t let candidates wiggle out of an answer by saying, “that’s up to the states.” I hope someone asks them, “How does DOMA ‘leave it up to the states’?… How has it been left up to the people of Massachusetts when those couples are denied 1,130 rights and benefits other married couples enjoy?… How can it be left up to the states if someone’s marital status changes every time they cross a state line?”

I’d love to see their answers. I suspect they don’t have any.

Go to Part 3.



  1. August 5, 2007 at 3:01 pm

    […] Democrats use to deny marriage equality.  In the previous two, I’ve quoted Clinton on the states’ rights argument and Obama on religion.  The voice of the final, third excuse is Edwards’ famous […]

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