Can We Stop the Dam from Bursting on Marriage in America?

The United States Supreme Court today, in a predictable 5-4 decision, struck-down the primary portions of the 1996 Defense of Marriage Act passed by both chambers of the United States Congress and signed by then-President William Jefferson Clinton. The purpose of the Act was to ensure that marriage between a man and a woman was recognized as the legal standard of matrimony across the nation, and to ensure that individual states were not forced to recognize the redefinition of marriage by other states. There are several sections included in DOMA, with the two primary sections consisting of I.) a definition of marriage as the relationship between a man and a woman from the federal perspective and II.) a provision protecting states from having to recognize same-sex marriages legalized in other states under the Constitution’s “Full Faith and Credit” Clause, which is designed to ensure judicial reciprocity across state lines (like mutual recognition of other states’ drivers’ licenses, etc).

Today’s decision struck-down the federal recognition of marriage as the relationship between one man and one woman, but did not expressly strike the provision protecting states from forced recognition of others states’ same-sex marriages. Nevertheless, it is merely a matter of time before this remaining section of the Act is challenged in court, and also struck from the US Code of Laws. Once this second section is struck, it will open an avalanche against states, like South Carolina, that currently have marriage protection amendments on the books. If this other section of DOMA is dismantled, which it almost surely will be, it will mean forced recognition in South Carolina and other traditional-marriage states of same-sex marriages from states like New York and Massachusetts. This is why it is imperative that the United States Congress move to pass a separate provision to protect states from the forced recognition of same-sex marriages performed in same-sex marriage states where same-sex marriage is not legal.

Additionally, individual states must start exploring legislative protections and legal avenues that will protect against forced recognition of same-sex marriage. It is imperative that South Carolina leaders start examining ways in which our state’s constitutional amendment on marriage might be challenged, and ways in which we can prevent the redefinition of marriage in the Palmetto State. With all due respect to South Carolina Attorney General Alan Wilson, I disagree with the spirit of his short statement issued earlier today to The State newspaper in Columbia:

“Today’s rulings do not impact South Carolina’s definition of marriage. They do confirm the federal government cannot interfere with a state’s right to define marriage.”

While this is technically true at present, these rulings have everything to do with South Carolina’s definition of marriage, as they pave the way for the national recognition of same-sex marriage. Attorney General Wilson is a good man of great intellect; he must recognize that, absent immediate action by Congress and the several states, the remaining protections to states’ ability to define marriage as they see fit will be struck-down in the near term. Thus, even if South Carolina is not forced to actually perform same-sex marriages, we will almost certainly be required to recognize them. This undermines the entire spirit of the South Carolina Constitution’s Marriage Amendment passed with 78% of the vote in 2006. Regardless if our state performs these marriages or merely recognizes them, the current legal environment makes it almost inevitable that we will have legally married same-sex couples in this state.

Today’s rulings are a clarion call to all Americans who care about the sanctity of marriage and the nucleic family unit. We must unite together now to ensure the survival of this most fundamental of societal institutions, if we are to retain free and responsible government in this nation.

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