Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Can the federal government decide who is legally married?

January 14, 2014 by Lyle Denniston


Lyle Denniston says it is by no means clear that a state can wipe out already performed same-sex marriages that occurred within a window of opportunity when a state ban was not in effect.

Image via Chris Walton/Flickr.
Image via Chris Walton/Flickr.


“Attorney General Eric Holder is now doing the very thing that the Supreme Court in Windsor v. United States held the federal government could not do - use a definition of marriage for federal law purposes that did not respect the policy choices made by the individual states. This determination should be reversed if the state of Utah's sovereignty -- or really any state's -- is to be upheld and respected."

 – Brian Brown, president of the National Organization for Marriage, a group that supports a traditional definition of marriage, in a statement January 10 reacting to Attorney General Holder’s announcement that day that the federal government will recognize, for purposes of federal benefits, the legality of marriages performed in Utah before the Supreme Court put a temporary hold on such marriages while the issue is under review in a federal appeals court.

“I’m extremely sympathetic to the pro-equality judgment underlying Holder’s statement, but I’m dubious about the legal authority in light of the apparently contrary decision by Utah.”

 – Michael C. Dorf, a law professor at Cornell University, in a statement to The New York Times, as published in a story on January 11 about the Holder announcement. Professor Dorf, in articles since then on his blog, Dorf on Law, has suggested several theories that might support the Holder decision.


Until the Supreme Court someday clarifies the issue, the legality of same-sex marriages that are performed during a time when that was legally allowed will remain unsettled.  But, at this point, it is by no means clear that a state can wipe out already performed same-sex marriages that occurred within a window of opportunity when a state ban was not in effect.

Marriage, as a civil status that is largely controlled by state law, is a very valuable institution, and carries with it a host of benefits and legal advantages.   The importance of those benefits, and what their availability says about public acceptance of legally married same-sex couples, were major factors in the Supreme Court’s decision in June striking down a 1996 law (the Defense of Marriage Act) that denied all federal benefits to gay and lesbian couples who had been married legally.

The Supreme Court, however, did not say anything in that ruling about whether a state must recognize the validity such marriages when that state’s laws withhold that opportunity based on the sexual identity of the partners.   Moreover, the Supreme Court did not say anything about that last week, when it issued a brief order halting same-sex marriages in Utah while a federal appeals court reviews the constitutionality of the state’s ban.

Some observers, however, have interpreted those two actions by the Supreme Court as an indication that even temporary access to marriage for same-sex couples does not make their resulting marriages legal.   There was a 17-day window of opportunity for such couples to wed in Utah, between the time a federal judge in Salt Lake City struck down the Utah ban and the day the Supreme Court put that judge’s ruling temporarily on hold.

There is now a lively debate in the wake of the decision last week by U.S. Attorney General Eric Holder to treat as fully legal perhaps as many as 1,300 same-sex marriages that were performed in Utah during that interval.  The debated issue is whether the federal government can decide for itself who is legally married, especially in view of the primary power of the states to define who may enter marriage,

Although Holder did not make public any legal justification for his move, other than the government’s support of marriage equality, there are some hints in two important court rulings of an argument that Holder’s aides may well have pondered.   The first of those two rulings is the Supreme Court’s decision in the Windsor case. And the second is a 2009 decision by the California Supreme Court upholding the legality of some 18,000 same-sex weddings performed in that state during a window of opportunity before that window was closed by the voter-approved “Proposition 8” banning such marriages.

The Supreme Court’s Windsor decision is often interpreted by legal analysts as turning upon the court’s respect for the fundamental role of states in defining marriage.  The theory is that the court struck down DOMA’s ban on federal benefits for legally-married same-sex couples because it was intruding on state power, under doctrines of federalism and states’ rights.

That, of course, was part of the Court’s rationale in the Windsor case, and there is much in the majority opinion that dwells upon the primary role of the states in this field.  But that was not the only rationale, and the court said explicitly that it was not relying entirely on that.  It also went on to find that DOMA ban invalid for taking away what had been allowed in states permitting such marriages, and offered sweeping rhetoric about the constitutional problem of withdrawing the important benefits of legal marriage.

Moreover, the Court said directly that the federal government does, indeed, retain some role even if that impacts on state definitions of marriage.  “When the federal government acts in the exercise of its own authority, it has a wide choice of the mechanisms and means to adopt…Congress has the power both to ensure efficiency in the administration of its programs and to choose what larger goals and policies it pursues.”

That language would appear to apply also to the Justice Department, and other parts of the federal government.  In fact, in the wake of the Windsor decision, agencies all across the federal government have extended federal benefits to already-married same-sex couples, even if they lived in or moved to states where their marriages were not legally recognized.  Attorney General Holder’s decision to recognize the already-performed Utah gay and lesbian marriages, he said, was a continuation of that effort.

Another influence on Holder’s decision could well have been the constitutional theory that the California Supreme Court used four years ago when, while upholding the “Proposition 8” ban on same-sex marriages in that state, it nevertheless ruled that “Proposition 8” did not invalidate such marriages that were performed under the authority of an earlier state supreme court ruling that was overturned by the state’s voters.

“Past cases,” the state supreme court said, “establish that retroactive application of a new measure may conflict with constitutional principles if it deprives a person of a vested right without due process of law.”  Same-sex couples who had married on the basis of the prior court decision “acquired vested property rights as lawfully married spouses, with respect to a wide range of subjects…These couples’ reliance upon this court’s final decision…was entirely legitimate.”

The California constitution, like the federal Constitution, protects a right to due process of law.  It would violate that protection, the state court said, to undo the marriages that were valid when they were performed.

The question now is whether the December-to-January opportunity for gays and lesbians to get married in Utah did, in fact, give them a vested right to keep the benefits they gained – at least the benefits available under federal law.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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