We rarely think about laws and how they are put into place and by whom, but we should.
The Constitution’s Full Faith and Credit Clause, in Article IV, of course, does require the states to honor “the public acts, records and judicial proceedings of every other state.” But does a marriage decree qualify for that kind of respect? It probably does not, for two reasons. First, the Supreme Court for decades has interpreted the clause to require respect for court orders, not other forms of state government action, and marriage decrees are technically not court documents. Second, the court also for a long time has said that there is an exception to the requirement when a state has a “public policy” that forbids it to respect another state’s action in a given area.
If those two reasons were not enough to deny marriage decrees in one state from recognition in another, Congress has given states explicit permission to refuse to recognize same-sex marriages performed in other states.
That is a provision of the Defense of Marriage Act—Section 2—that was not under review before the Supreme Court this year. Section 2 reads: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
So how does that work? Congress says ‘if it is an opposite sex marriage all you states have to recognize it but if it is a same sex marriage then none of you states are bound by it.’
And if you are paying attention then you know that Title VII of the Civil Rights Act of 1964 is not the least bit disturbed by the Defense of Marriage Act.
So here is what the IRS did:
…the Internal Revenue Service has used its own authority to interpret the federal tax laws to take a major step toward nationalizing the right of married same-sex couples to equal access to federal tax benefits, even if they move into a state that formally refuses to recognize their marriage.
In what is called a “revenue ruling,” which just went into effect on Monday, the IRS gave such couples the right to federal tax equality, so long as their marriage was valid in any state. The ruling, the IRS noted, “applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and obtaining the earned income tax credit or child tax credit.”
The ruling, the IRS stressed, “applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or jurisdiction that does not recognize same-sex marriage.” The tax rights for such couples, the agency added, are based upon the validity of the marriage where it was performed, not whether there is a right to marry where the couple currently lives.
This is a form of Constitution-making by a federal agency since the IRS did not wait for the courts to widen the scope of marriage equality before the agency chose to do so using its own administrative powers. The tax equality its ruling decreed, the IRS said in explaining why it acted, is necessary to avoid the constitutional problem that would arise if same-sex marriages were treated differently based solely on sexual orientation.
Now you are thinking ‘so what? Isn’t that what we want?’ Well, marriage is a State matter, no matter where Congress chooses to stick its nose. But once again, federal power seeks more power. And agencies seek ever more power to decree as they wish.
Will we stop this snowball from rolling?