The American government is welcoming to changes, but also conservative. Same sex marriages and marijuana are not legal on the federal level. Though some states have legalized their use, the federal government has each time overridden their decision through a federal legislation. Despite the fact that states are independent from the federal government with regard to laws not related to federal spending, the opposite is true. The Congress can override or force states to comply with federal decisions, regardless of the state laws, though the US President can find a way to circumvent congressional decisions.
History of same sex marriages is young. In 1993, the Supreme Court of Hawaii ruled in favor of same sex marriages, as their rights were denied to them on the basis of their sex and not sexual orientation (NYT 2012). Though Hawaii defined by law that marriage is to be between a man and a woman only, conservatives across the country lobbied (NYT 2012). In 1996, Congress passed the Defense of Marriage Act, which denied federal benefits to married people of the same sex and authorized states to neglect gay marriages sanctioned in other states (NYT 2012).
Same sex marriage is still illegal at the federal level, though practiced by several states. The Massachusetts Supreme Court in 2004 ruled that the same sex marriage is legal in the State of Massachusetts (NYT 2012). Since then, a few other states followed the suit: New York, Connecticut, Iowa, New Hampshire, Vermont and Washington, D.C. (NYT 2012). It was not until 2012 when Vice President Biden publicly stated that he supported same sex marriages that President Obama decided to push for same sex marriages to be legalized in the USA (NYT 2012). In 2011, President Obama “directed the Justice Department to stop defending the Defense of Marriage Act” (NYT 2012).
Though some states legalized same sex marriages, the refusal to acknowledge these marriages is not a violation in other states. According to the Article IV of the US Constitution, the Full Faith and Credit Clause, states must respect each other’s laws (Sachs 1203). However, under the Defense of Marriage Act this is no longer true. This act excuses states from being in compliance with laws of other states with regard to same sex marriages. According to Sachs, states can do so as long as the laws of other states conflict with their own, important national interests (1205). Since Congress did not clearly state under what conditions states must comply with other’s states’ laws, the Full Faith and Credit Clause has been left to interpretation (Sachs 1206). Thus, though the Defense of Marriage Act overrides the individual states’ decisions, it by no means violates them (Sachs 1207).
The federal government remains conservative with regard to marijuana too. According to the federal Controlled Substances Act, marijuana is illegal even in cases of medical use (Eddy 1). It was not until 1936 that marijuana became regulated in the USA (Eddy 1). Beforehand marijuana was treated as a medicine. In 1937, the Marihuana Tax Act was passed, barring everyone from using it (Eddy 2). While states have in some cases legalized marijuana for medical use, the federal law is such that anyone found using it or processing and distributing it is engaged in illegal activity, regardless of the state law (Eddy 4).
Proposals to authorize state laws failed. In 2003, Representatives Hinchey and Rohrabacher proposed a bipartisan amendment to the FY2004 Commerce, Justice, State
Appropriations Bill (Eddy 4). Under this amendment, states that legalized the use of marijuana would have been authorized to use marijuana. However, this amendment was rejected in Congress (Eddy 4). Two bills were proposed in 2009: Truth in Trials Act and The Medical Marijuana Patient Protection Act. Both were denied. No amendment ever passed in Congress that would legalize marijuana for medical use.
The power lies with the US Congress. Congress has several tools it uses to persuade states to comply with congressional decisions. One such is spending power. According to Rotunda, if the state does not comply, the federal government refuses to invest in infrastructure in that state, or decides to raise taxes (163). The commerce power under the Commerce Clause is another tool (Rotunda 165). For example, minimum wages can be imposed in states, but the limitation on the Congress is that the same wage must apply to the private sector as well (Rotunda 165 – 166).
The Supremacy Clause allows the Congress to impose its authority as well. Under the Eleventh Amendment, “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State” (Rotunda 166). This Amendment allows citizens of a state to sue the state and the federal government cannot place limitations (Rotunda 166). However, this amendment does not authorize states to refuse to comply with federal laws. The Supremacy Clause is above the Eleventh Amendment (Rotunda 167). The Tenth Amendment serves as a restraint, under which marital law belongs to states (Smith 7). However, Congress passed the Defense of Marriage Act regardless of the Tenth Amendment.
Congress can act against any state under the Fourteenth Amendment. Under the Section 5 of the Fourteenth Amendment, Congress can pass any legislation in order to protect citizens from state action (Rotunda 169). For example, the Defense of Marriage Act can be interpreted as such an act, as can the Controlled Substances Act. Both acts prohibit use of acts that are deemed harmful by some citizens. As a result, the Eleventh Amendment can be violated by the federal government. Rotunda argues that this power has been established through historical practice and is thus legal (169).
However, the President can circumvent the power of the US Congress. Under “Don’t Ask Don’t Tell” policy passed by the Clinton Administration, the US military members were not allowed to be questioned about their sexuality (Burrelli 1). This amendment by the Clinton administration nullified the Congressional law P.L. 103-160, codified in 10 United States Code Section 654 (Burrelli 1). According to the latter law, no homosexual was allowed to serve in the US military forces:
This language codified the grounds for discharge from the military as follows: (1) the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts; (2) the member states that he or she is a homosexual or bisexual; or (3) the member has married or attempted to marry someone of the same sex (Burrelli 1).
Under the Clinton administration, the law became impractical, as nobody was allowed to execute it. On 10 December 2010, both laws were repealed (Burrelli 1).
The Defense of Marriage Act causes problems for homosexuals in the military. Under the Service Members Group Life Insurance (SGLI) or the Death Gratuity, the service member’s beneficiary receives a certain amount of money in an event of the service member’s death (Burrelli 5). However, for same sex couples this possibility is forbidden under the federal law. Some members of Congress stated publicly in Congress that the Defense of Marriage Act is unconstitutional (Burrelli 6 – 7).
As a result, lawsuits followed. In 2010, Judge Joseph L. Tauro of the US District Court in Boston ruled in favor of plaintiffs who claimed that the federal government under the Defense of Marriage Act violated their constitutional rights. The plaintiffs were the state attorney general and a gay rights group (Goodnough). The latter case, Gill v. Office of Personnel Management, claimed that federal benefits such as social security survivor’s payments and the right to file taxes jointly were unconstitutionally denied to same sex couples (Goodnough). The plaintiffs claimed that their rights under the Equal Protection Clause under the Fifth Amendment were violated (Smith 7). Judge Tauro ruled in their favor (Goodnough). The Judge claimed that homosexual marriages did not threaten heterosexual marriages, and that procreation in a marriage is not a precondition for a marriage (Smith 5). He argued: “[m]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [by the government] are decidedly impermissible basis upon which to ground a legislative classification” (Smith 5).
The attorney general won the case as well. In the former case where the plaintiff was Martha Coakley, the Massachusetts attorney general, Judge Tauro ruled in 2010 that the Defense of Marriage Act forced Massachusetts to discriminate against same sex married couple so that Massachusetts could obtain funds from the federal government. Until 2011, the Obama administration appealed the ruling. Then, the Justice Department left Congress to independently appeal Judge Tauro’s ruling to the First Circuit (Goodnough).
As mentioned above, though the Defense of Marriage Act does not explicitly force states to comply with it, Congress does it unofficially. According to Smith, the Defense of Marriage Act was passed “to protect federalism interests and state sovereignty in the area of domestic relations, historically a subject of almost exclusive state concern. Moreover, it permits but does not require states to deny recognition to same-sex marriages in other states” (4). However, as mentioned above, Massachusetts was forced to comply through the congressional power to withdraw funds. Massachusetts was not given the liberty to independently decide whether to authorize the Defense of Marriage Act.
In short, Congress under the Fourteenth Amendment has the power to force states to abide by the laws they otherwise would have rejected. As a result, though same sex marriages and use of marijuana are legal in some states, they are not legal on the federal level. In turn, they are not legal in states that legalized them either. Congress has the power to coerce states to overrule their decision, and enforce other states to disregard laws of other states, despite the Full Faith and Credit Clause, and the Equal Protection Clause. Though the President has the power to override congressional decisions, he can only choose either not to support congressional decision or pass a law nullifying the previous law. The US military is one such example with regard to homosexual marriages. With a change in presidential attitude and judiciary decisions in favor of homosexual marriages, changes might take place.
Burrelli, David. The Repeal of “Don’t Ask, Don’t Tell”: Issues for Congress. Congressional Research Services, 5 April 2012. Web. 16 May 2012.
Controlled Substances Act, the Comprehensive Drug Abuse Prevention and Control Act, P.L.
Eddy, Mark. Medical Marijuana: Review and Analysis of Federal and State Policies.
Congressional Research Services, 2 April 20120. Web. 16 May 2012.
FY2004 Commerce, Justice, State appropriations Bill, H.R. 2799 (2003).
Gill et al. v. Office of Personnel Management 699 F.Supp.2d 374 (D.Mass., 2010).
Goodnough, Abby, Appeals Court Hears Arguments on Gay Marriage Law, New York
Times.com, April 4, 2012. Web. 16 May 2012.
New York Times. Same – Sex Marriage, Civil Unions, and Domestic Partnerships. New
York Times, 9 May 2012. Web. 15 May 2012.
Rotunda, Ronald. “The Power of Congress under Section 5 of the Fourteenth Amendment
after City of Boerne v. Flores.” Indiana Law Review 32 (1998): 163 – 191. Web. 16 May
Sachs, Stephen E. “Full Faith and Credit in the Early Congress.” Virginia Law Review
95(2009): 1201 – 1279. Web. 16 May 2012.
Smith, Allison M. Same-Sex Marriages: Legal Issues. Congressional Research Services, 18
August 2010. Web. 16 May 2012.
The Medical Marijuana Patient Protection Act, H.R. 2835 (2009).
The Truth in Trials Act, H.R. 3939 (2009).