There is some pretty bad history being bandied about in the defense of the Defense of Marriage Act, and the case in point is William C. Duncan. Recently, Duncan and a colleague filed an amicus brief and published a law review article defending DOMA. The law review article is not fully available, but he did write this for the National Review:
The plaintiffs in one of the lawsuits challenging DOMA (the first California case to get to the Ninth Circuit) have filed their brief with the court and are reportedly arguing, among other things, that “DOMA is an unprecedented departure from this nation’s federalist tradition, the first time in our history that Congress has intruded on the states’ sovereignty in determining who is validly married. . .
A colleague and I have recently published a law review article which describes a number of instances where Congress has defined marriage for purposes of administering federal programs in a way different from the States, so that states might consider a person married but the federal government does not recognize those marriages. The enabling acts providing for the admission of Utah, Arizona, New Mexico, and Oklahoma as states all mandate a certain definition of marriage (actually the same one as DOMA uses in terms of the number of spouses).
Because the law review article is not available, and Duncan does not enumerate the instances where a federal program has a different definition of marriage than a state, it is kind of hard to say that his point is valid or invalid there. The only places where someone can be married according to the state but not the federal government appears to be only in those instances where the states have same-sex marriage laws. There are instances where people are considered married by their church or by another country, but aren’t married here, but that’s usually with regards to polygamy- something that every state bans.
The bigger issue here is that Duncan tries to rely upon something that does not work in order to make a case that the Federal Government has defined marriage before DOMA. This statement “The enabling acts providing for the admission of Utah, Arizona, New Mexico, and Oklahoma as states all mandate a certain definition of marriage” is actually rather problematic. You see, Duncan is referring to the Morrill, Edmunds, and Edmunds-Tucker Acts, and none of them are valid, really. All three laws, which are now defunct, govern territories not states. The Edmunds-Tucker Act went into effect in 1887- five years before Utah became a state. It was upheld in 1890- two years before Utah became a state.
All three laws banned polygamy in the territories owned by the United States. If the Edmunds-Tucker Act had not been repealed in the 1970’s, then it would apply to Puerto Rico, the Northern Mariana Islands, the Virgin Islands, and Guam. None of the acts actually applies to a state, though they do bar territories from becoming states so long as they have legalized polygamy. Duncan is actually using an incorrect interpretation of these laws to try and validate his position that the United States government has defined marriage somehow other than with DOMA. Even a cursory investigation of the internet cannot find a situation where the federal government and a state differ on marriage with the exception of same-sex marriage.
Utah was admitted to the United States in 1896; Oklahoma in 1907; and New Mexico in 1912. All three were governed by the United States Federal Government more directly up until that point. Laws defining marriage in a territory bypass the states’ rights issues because they are not states. In fact, it isn’t just legal for the US to do this- but Constitutional. Article VI of the Constitution states “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
So, the Morrill, Edmunds and Edmunds-Tucker Acts have no bearing whatsoever on DOMA or any debate surrounding it.