Redefining the State
The Politics of Incorporation and
the Case of Same-Sex Marriage
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 is not the only example of the way the conservatives' “devolution revolution” in social policy deconstructs itself. The homophobic Defense of Marriage Act of 1996 (DOMA) was another. It was an ironic assertion of national power allegedly designed to protect states' rights. Proponents of the law claimed that Congress was acting to preserve each state's autonomy to decide which marriages it would recognize. Yet in the process Congress undermined the authority of states in the intergovernmental system. While disallowing same-sex marriages, Congress made the intergovernmental system a little less collaborative. Proponents claimed that DOMA was protecting state autonomy by allowing states not to have to recognize same-sex marriages from other states; however, the law did this in a way that simultaneously weakened the role of states in matters of social policy that have traditionally been reserved to them.
The sad and short history of DOMA underscores how otherness can be a critical issue in the intergovernmental system of social policy. In the following chapter, I examine how the homophobia of DOMA was facilitated by the xenophobia of federalism. DOMA was originally prompted by the possibility that the Supreme Court of the State of Hawai'i was about to legalize same-sex marriages. Same-sex marriage may have started as a local issue in faraway Hawai'i but it ended up with Congress and the president saying they were against it. As a result, federal legislation has defined marriage for purposes of federal law as limited to unions between a man and a woman, preempted state powers to define marriages for purposes of federal law, and interfered with the process by which one state recognizes the marriages of