In a recent op ed, Harvard Law Professor Noah Feldman argues that striking down the Defense of Marriage Act on federalism grounds – as advocated in an amicus brief I signed along with several other federalism scholars, including co-bloggers Jonathan Adler, Randy Barnett, and Dale Carpenter – would lead to “litigation chaos”:
[T]he problem with this gradual strategy envisioned by court observers and attributed to [Justice] Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation….
To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.
In the first, most optimistic scenario, one or several marriage-friendly states might allow anyone from any state to get married there, creating a Las Vegas-style business in same- sex marriage. Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out- of-state marriages, and deny them state-level marriage benefits.
If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions — across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is.
If no state wanted to attract business by becoming the same-sex-marriage hub for out-of-state residents, then the anomaly would arise when legally married gay couples moved to states that didn’t recognize their unions. Presumably they would nevertheless bring their federal benefits with them — giving rise to the same legal issues just described.
To be honest, I simply don’t see the problem here. If same-sex couples get married in State A, receive federal marriage benefits, and then move to State B, which denies them state-level marriage benefits, there is no need for litigation of any kind. The couple in question will have federal marriage benefits, but no state ones (at least none from State B). Obviously, the couple might want to get state benefits from B and could potentially file lawsuits claiming that State B is engaging in unconstitutional discrimination against same-sex couples. But they could file the exact same lawsuits even if DOMA remains in place. We already have married same-sex couples that move from states that recognize same-sex marriage to those that don’t and seek to obtain benefits as a result. State and federal courts will have to address those cases regardless of whether or not DOMA gets invalidated on federalism grounds. The fact that if DOMA is struck down these couples will get federal marriage benefits does not require states to grant them state benefits.
To be sure, many states base tax status on residents’ federal tax returns. If same-sex couples could file as “married” on their federal tax returns, states that don’t recognize same-sex marriage might end up implicitly giving such people “married” tax filing status. However, if the state government doesn’t like that result, they could simply alter state tax law to forbid same-sex couples married in other states from filing as “married” on their state tax returns. This would be easy for states to do and need not give rise to any complex litigation. Many states already have tax deductions that are different from those on federal returns.
Feldman also scares readers with the following creative scenario:
Some scenarios are downright funny. Suppose I married someone of the same sex in New York and that marriage wasn’t recognized in Pennsylvania. If I then decided to marry someone of the opposite sex in Pennsylvania, the state would presumably recognize that marriage while New York recognized my previous one. And both marriages would be recognized by the federal government, which would treat me as a lawful bigamist. That would be good news for 19th century Mormons, who were denied a federal constitutional right to plural marriage — but most people today would find the conclusion truly bizarre.
As a legal scholar myself, I enjoy clever law professor hypotheticals as much as the next guy, probably even more. But this one has little real-world bite. As a practical matter, it is unlikely that any significant number of people will want to enter both a same-sex marriage and an opposite-sex marriage at the same time. If someone did try to do it, states that don’t recognize same-sex marriage could protect themselves against the possibility simply by enacting a law stating that they will not recognize a marriage contracted by a person who is still a participant in a same-sex marriage or civil union contracted in another state. Doing that would not require the state to recognize same-sex marriage generally. As for the federal government, refusing to recognize a second marriage entered into by a person who has never divorced their first spouse need not involve any federal encroachment on state governments’ powers to define marriage. After all, no state allows people to enter into multiple marriages at the same time either.
Some degree of conflict and legal uncertainty is inevitable in a federal system where different states have divergent marriage laws. But invalidating DOMA on federalism grounds would not significantly exacerbate these problems, much less lead to legal “chaos.”
UPDATE: Congress could also try to address these possible issues by basing eligibility for federal benefits on the marriage law of either the state of residency or the state where the marriage in question was initially contracted. Either approach would avoid the federalism problems created by DOMA, since neither would be a pretext for an effort to try to pressure states to define marriage in a particular way.
UPDATE #2: Ed Whelan responds to this post here:
Those crediting the federalist argument against DOMA have generally been claiming (wrongly) that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides….
Somin’s claim is radically different. Under his account, the federal government would not be deferring to and applying the definition of marriage in the state in which a couple resides. Instead, for same-sex couples that lawfully marry in any state that allows same-sex marriage, the federal government would provide federal marriage benefits for those same-sex couples if they live, or if they later move to, a state that doesn’t recognize same-sex marriage. In short, under the false flag of federalism, Somin would have the federal government nationalize federal marriage benefits for same-sex marriages.
Somin’s position also gives the lie to the absurd claim that he and his co-signatories make that DOMA’s definition of marriage for purposes of federal benefits somehow intrudes on state authority over marriage. Whether or not Somin’s position is correct, Somin, by taking it, necessarily acknowledges that it is permissible for federal marriage benefits to apply to those living in a state without tracking that state’s definition of marriage. So much for the federalist argument against DOMA…
If [Somin] is right, he and the other signatories to the amicus brief of “federalism scholars” have submitted a highly deceptive brief that, in the mistaken name of federalism, would nationalize federal marriage benefits for same-sex spouses. If he is wrong, he has signed his name to an amicus brief without having giving serious attention to what his position actually means.
Whelan is wrong to claim that there is some deep contradiction in my position, much less that the brief I signed was “deceptive.” The position defended in the brief is that the federal government cannot adopt a general national definition of marriage and must instead respect state autonomy in that area. Deferring to the definition of marriage in force in the state where the marriage was contracted is deferring to the states. No one can enter a same-sex marriage unless they do so in a state where it is permitted. If a same-sex couple migrates, the receiving state can still maintain its refusal to recognize SSM. And as a practical matter, we are only talking about a small number of cases here. Gays and lesbians are only about 3% of the population and those who enter SSMs in states that permit it and then move to states that don’t are likely to be a tiny fraction of that.
Whelan’s claim that allowing couples that entered same-sex marriages to continue receiving federal marriage benefits when they move to a different state interferes with state definitions of marriage just like DOMA does is also weak. There is no meaningful comparison between an act that affects over 1100 different benefits and impacts all SSM participants everywhere and is deliberately intended to promote “traditional marriage” with the framework that I describe, which involves no such pretextual intent on the part of Congress, and in practice would have only very minor effects.
Finally, I would add that Congress can choose to condition federal marriage benefits on the law of the domicile state rather than on the law of the state where the marriage was contracted. Either approach is consistent both with my original post and with the position we took in our brief, because both avoid establishing a federal definition of marriage and both ultimately defer to state law. In my discussion above, I merely assumed the framework outlined in Noah Feldman’s op ed, and noted that it would not result in the “legal chaos” he predicted. But it’s not the only possible framework for determining eligibility for federal marriage benefits. Randy Barnett makes some related points here.