Summary: Most of the arguments against DOMA and for marriage equality derive, and quite rightly, from the 14th Amendment guarantee of equal protection. Yet, to the extent that laws and policies intended to prevent queerfolk from marrying impose upon queerfolk a badge and incident of slavery, they may also fall afoul not only of the 13th amendment, but also of the Congressional intent underlying the amendment of eradicating badges and incidents of slavery.
By: Paul S. Marchand
Many of the arguments advanced to support marriage equality and to justify striking down DOMA derive quite rightly from the Equal Protection guarantee contained in the Fourteenth Amendment to the United States Constitution.
Perhaps overlooked in the sound and the fury has been the question of whether a sustainable argument in favor of marriage equality can be advanced under the Thirteenth Amendment as well.
Invoking the Thirteenth may seem counterintuitive, even perverse. After all, the Thirteenth Amendment abolished slavery, and, on its face, appears to have nothing to do with equal protection or the right to marry.
Nonetheless, the concept of the right to marry --- and particularly of the constitutionality of the so-called Defense of Marriage Act --- may be more bound up in the 13th amendment than is immediately obvious. Section 2 of the Thirteenth Amendment confides to Congress the power to enforce the amendment by “appropriate legislation.” Moreover, it is well settled that part of the remedial intent of the Thirteenth Amendment is to do away with so-called badges and incidents of slavery.
Here is where the Thirteenth Amendment becomes relevant to the issue of marriage equality. In the antebellum South, marriages of slaves were not considered valid. Slaves might go through a form of marriage ceremony, but the contingent and transitory nature of such weddings was well expressed in the alteration of the vow to have and to hold “until death us do part.” The modified vow expressed in slave weddings contained the significant additional words “or distance.” Thus, a slave couple plighting to one another their troth did so “until death or distance” did them part.
As I have noted before, a government law or policy that categorically denies to me the right to marry if my intended spouse is not of the gender the government has decreed, to some degree reduces me to the status of slave; if I were to plight my troth to another man, United States law would deny both the validity and the existence of my marriage.
Consequently, to the extent that my state and my country see fit to deny me the faculty and freedom of marital contract, they have imposed upon me a badge and incident of slavery, contrary to Congress’s intent in enacting the Thirteenth Amendment. Moreover, to the extent existing law creates a patchwork of jurisdictions where an LGBT couple can be married in one state, but possess no juridical relationship worthy of the name in a neighboring state, another badge and incident of slavery has been implicated.
Prior to the Civil War, American states enacted a crazy quilt of often inconsistent, even contradictory, laws relating to the status of free persons of color. Some states acknowledged the free personhood of people of color, other states denied it. An African-American traveling from New Orleans to Boston would have to navigate that journey carefully, avoiding jurisdictions in which the law denied his free black status and considered him nothing more than a legitimate target for capture and re-enslavement.
Today, married queerfolk find themselves confronting similar geographical challenges: married here, mere strangers there. For a citizen to be unable to rely upon a uniform civil state (single, married, or divorced) throughout the country reflects an antebellum “badge and incident of slavery” reality. To the extent that DOMA helps to establish and entrench such a reality, it enforces upon queer couples the kind of uncertainty the Thirteenth Amendment was designed, at least in part, to overcome, as well as enforcing upon queer couples a kind of second-class status which the Congressional framers of the Thirteenth Amendment plainly intended to eradicate.
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Paul S. Marchand is an attorney who lives in practices in Cathedral City, California, where he served eight years as a member of the city Council. The views contained herein are his own, and are not intended as, and should not be construed as, legal advice.
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