More on Gay Marriage and Federalism

I welcome Adam’s change of heart on the federalism issues with DOMA, which he expressed in his post earlier today.

As a staffer on the Senate Judiciary Committee at the time of the law’s passage, I didn’t think this provision a hard question. The federal government can define the terms of its own laws, just as the states may for their own. Congress can define marriage for federal tax and benefit law, just as states can for their own laws. Federalism forbids the feds from forcing states to adopt a definition of marriage as one man and one woman, just as it also forbids states from forcing federal law to define marriage as between heterosexuals or homosexuals.

To see this point clearly, suppose a state defined marriage to include polygamy. That would bind the state, but the federal government would be under no constitutional obligation to accept the definition, and it could keep marriage as a man and a woman.

For some more thoughts on the gay marriage cases before the court, here’s my appearance from earlier today on the Wall Street Journal’s Opinion Journal:

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  1. James Of England
    Rawls: Professor, which of these scenarios that you describe applied to Loving v. Virginia, the miscegenation case? · 3 hours ago

    Loving was a case about state criminal statutes. It’s often raised to make points about SSM, but not to make points relevant to Prof. Yoo’s analysis here.

  2. Fat Dave

    While I sympathise with the proponents of gay marriage, my question is how does the Federalism argument work in light of the 1862 Morrill Anti-Bigamy Act,  the 1882 Edmunds Act, and Reynolds v. United States?  Seems like the Feds have taken a keen interest in marital relations in the past. 

  3. mask

    Polygamy?  That’s ridiculous – who wants polygamy?

    ***checks driver’s license – notices it says Utah***

    Nevermind

  4. Douglas

    “Federalism forbids the feds from forcing states to adopt a definition of marriage as one man and one woman, just as it also forbids states from forcing federal law to define marriage as between heterosexuals or homosexuals.”

    I don’t know about Federalism  but the Constitution, as written, forbids no such thing.

  5. Neolibertarian

    Besides the arguments stated, it’s just a matter of the real implications.

    How does federalism work with variously defined marriages in different state’s statutes?

    Let’s say polygamous marriages are legally sanctioned in Colorado. Let’s say a group gets married there, and then moves to Illinois where, let’s say, polygamous marriages are outlawed.

    What if this polygamous group just travels through Illinois? They’re not married because they crossed a state boundary? They’re not married again until they reach a state where their marriage is protected by law?

    Aren’t you just asking for another Dred Scott decision?

    Agreed that the federalism argument is untenable.

    This doesn’t necessarily make one an advocate for DOMA.

  6. jpark

    John,

    There is another element of federalism in DOMA, and it’s Section 2.  That provision allows for the exercise of what one might call horizontal federalism:  One state does not make laws for its neighbors.  Section 2 of DOMA allows one State to recognize same-sex marriages as part of its laws governing marriage, but would not require another to accept what its neighbor deemed to be constitutionally required, good policy, the right thing to do, or all of them.

    Whether Section 2 is OK given the Full Faith and Credit Clause of the Constitution is another question.  But, one State should not make laws for the 49 others.  Take a look at Coca-Cola Co. v Harmar Bottling Co., 218 S.W. 3d 271 (Tex. 2006) or Avery v. State Farm Automobile Mut. Ins. Co., 835 N.E. 2d 801 (Ill. 2005).

  7. Lavaux
    Neolibertarian: How does federalism work with variously defined marriages in different state’s statutes?

    State courts must recognize judgments issued in foreign jurisdictions before they can be enforced. Conceptually and by treaty (if the Full Faith and Credit clause is seen as a treaty obligation), an Oregon judgment is just as foreign to a Washington court as is a German judgment. The same holds true with marriages concluded in foreign jurisdictions. If a judgment or marriage of a foreign jurisdiction violates the public policy of the enforcing jurisdiction, the enforcing jurisdiction may refuse to recognize it, which makes it unenforceable in that jurisdiction.

    So let’s say that Utah amends its constitution to legalize polygamy. Will Washington courts recognize polygamous marriages concluded in Utah and enforce them pursuant to the terms of Washington’s Domestic Relations code? No way, José. Whatever these loopy Utes think they’re doing, it ain’t marriage to us.

  8. Rawls

    Professor, which of these scenarios that you describe applied to Loving v. Virginia, the miscegenation case?

  9. Neolibertarian
    Lavaux

    Neolibertarian: How does federalism work with variously defined marriages in different state’s statutes?

    State courts must recognize judgments issued in foreign jurisdictions before they can be enforced. Conceptually and by treaty (if the Full Faith and Credit clause is seen as a treaty obligation), an Oregon judgment is just as foreign to a Washington court as is a German judgment. The same holds true with marriages concluded in foreign jurisdictions. If a judgment or marriage of a foreign jurisdiction violates the public policy of the enforcing jurisdiction, the enforcing jurisdiction may refuse to recognize it, which makes it unenforceable in that jurisdiction.

    So let’s say that Utah amends its constitution to legalize polygamy. Will Washington courts recognize polygamous marriages concluded in Utah and enforce them pursuant to the terms of Washington’s Domestic Relations code? No way, José. Whatever these loopy Utes think they’re doing, it ain’t marriage to us. 

    Exactly.

    I believe such a dichotomy among states would not stand long.

    The Dred Scott decision bestowed superiority of one state’s laws over another. A free state and a slave state cannot coexist when different rights are bestowed by one, taken by another.

  10. James Of England
    Neolibertarian

    Lavaux

    Neolibertarian: How does federalism work with variously defined marriages in different state’s statutes?

    …….So let’s say that Utah amends its constitution to legalize polygamy. Will Washington courts recognize polygamous marriages concluded in Utah and enforce them pursuant to the terms of Washington’s Domestic Relations code? No way, José. Whatever these loopy Utes think they’re doing, it ain’t marriage to us. 

    Exactly.

    I believe such a dichotomy among states would not stand long.

    The Dred Scott decision bestowed superiority of one state’s laws over another. A free state and a slave state cannot coexist when different rights are bestowed by one, taken by another. · 0 minutes ago

    States have coped with different ages of marriageability and different rules on consanguinity for a couple of centuries and still seem to be going strong. The Constitution may not be as frail as you imagine it to be. 

  11. James Of England

    Prof. Yoo, regarding Polygamy, do you believe that Reynolds v. US (1878), which upheld federal bans, is compatible with modern understandings of the Free Exercise clause, given that the law was passed with the express purpose of outlawing the religious practices of a specific sect?

  12. Neolibertarian
    James Of England

    States have coped with different ages of marriageability and different rules on consanguinity for a couple of centuries and still seem to be going strong. The Constitution may not be as frail as you imagine it to be. 

    This isn’t on the same order of impact.

    This isn’t merely variability of customs; it’s intentional revolution disguised as a civil rights issue.

    I wouldn’t mind so much if it were a civil rights issue. Revolution isn’t bad qua revolution.

    Marriage has been under assault for decades, along with many, many social norms of the established order. Natural enough, certainly. It’s also natural enough to resist the revolution.

    From what I understand, Pacific Employers Insurance v. Industrial Accident precludes using Full Faith and Credit to implement a social revolution:

    “The full faith and credit clause does not require a State to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another State…”

    But you perceived my real point. You see a tall oak. I see the mushy insides of the core.

    200 year old trees, strong and leafy, can sometimes snap without warning. 

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