Does Congress Have a Role in Regulating Marriage?
One of the aggravations in trying to sort out whether Congress is entitled to have an opinion about marriage law is Congress’ own ambivalence regarding this matter. During the debate over DOMA — which was heavily focused on the likely effects of the legalization of same-sex marriage in Hawaii — Senator Trent Lott argued that he did not object to the performance of same-sex marriage in some states. What he objected to, he claimed, was that all states would then have to respect such marriages. One state would, in his view, effectively control the law nationwide, by forcing other states to give effect to its same-sex marriages. (As subsequent history has demonstrated, this is far from an inevitable consequence of one state’s legalization of gay marriage. In fact, almost all states that refuse to perform same-sex marriages also refuse recognition to same-sex marriages performed elsewhere.) He was advocating for DOMA as a way to preserve the rights of each state. Other Republicans also pr
