What’s Wrong With Borax

Yesterday I outlined the three different ways that courts have dealt with the concept of marriage in federal statutes. I ultimately hope to convince you that they should be using the so-called “common law” approach. But my argument is essentially one of process of elimination. So in this post I’ll explain why the “Borax” method of defining marriage without reference to state law is bad.

First of all, let me acknowledge a point made repeatedly by Andy Grewal in the comments. It is true, in a technical but important sense, that the meaning of the word “marriage” in a federal statute is a question of federal law. Congress gets to decide what it’s referring to when it uses that word, and so the “choice of law” question that I’ve been grappling with has a hidden premise, and the premise is that Congress did indeed intend the word to draw upon the state law concept of marriage.

Nonetheless, I think this premise is right. The Supreme Court has said that it is right, holding in Desylva v. Ballentine that the word “children” in the Copyright Act should be defined by reference to “the ready-made body of state law” because “there is no federal law of domestic relations, which is primarily a matter of state concern.” (The Court also went on to look at the law of a particular state, not to try to derive some sort of generic consensus state law.)

This approach makes sense too. When people think of marriage, as a legal matter, they think about the institution that is created and defined by state law. It doesn’t really make sense to ask for a court to ask whether a couple is “married” except in the state-law sense. This brings us back to the point that federal officials (territories, enclaves, and other exceptions aside) don’t issue marriage licenses.

Now, let me acknowledge a second Grewal point, which is that even if what I say is mostly right, surely there is some theoretical state law that is so crazy that the courts wouldn’t rely on it. (Commenters like to invoke the old saw about calling a “tail” a “leg” here– imagine a state that for some mysterious reason used the word “marriage” to describe all contractual relationships of any kind.) Indeed, in DeSylva the court said that a “State would [not] be entitled to use the word ‘children’ in a way entirely strange to those familiar with its ordinary usage,” (but, it added, “at least to the extent that there are permissible variations in the ordinary concept of ‘children,’ we deem state law controlling.”).

This is an accurate caveat. But the whole premise of a world where DOMA is invalidated or repealed is that it is at least “permissible” for the federal government to use the word marriage to include state-sanctioned same-sex marriages. So we are clearly inside the zone where we should “deem state law controlling,” meaning that we do indeed need to figure out which state’s law to so deem.

I’ve noticed that the Borax approach has intuitive appeal for a lot of readers. But I want to encourage you to think about how hard it would be to make it work in this context. Imagine that Congress repeals DOMA, without replacing it with any other interpretive rule. A same-sex couple says that they are married, and tries to file their taxes jointly, or one of them tries to claim a spousal employee benefit. Is the same-sex couple married, and what information would you need to decide? I just don’t think there’s a workable answer that doesn’t include “their marriage license” (or equivalent).