The Exact Same Word May Mean Different Things For Purposes of State Law and Federal Law

Section 3 of the Defense of Marriage Act (DOMA) defines the word “marriage” for purposes of federal law. In a recent post, Randy argues that this provision must be unconstitutional, because otherwise one could be “married” under state law but not under federal law, or vice versa, and “that is crazy.”

With all due respect, this is not crazy. It is, in fact, an utterly commonplace feature of our federalism that the exact same word may mean different things for purposes of state law and federal law. Ed Whelan demonstrates that this is true of the word “marriage” itself, even without DOMA. Orin Kerr points out that it is actually true of Randy’s favorite example, the word “property,” even though property law is generally core state law. And I have pointed out that it is true of the entire Dictionary Act, including the word “county,” see 1 U.S.C. 2, even though one might have thought that defining subdivisions like counties was the single most fundamental state function.

I would just add that this is also true of literally hundreds of other words throughout the U.S. Code. Many, perhaps most, of the words in the U.S. Code also appear in some state statute. It is utterly unsurprising to find that many of these words mean different things in different statute books.

To be sure, Congress can, if it wishes, piggyback on state definitions. But the Court has never suggested that Congress is required to do so. In fact, the presumption traditionally runs the other way. See Jerome v. United States, 318 U.S. 101, 104 (1943) (“in the absence of a plain indication to the contrary, … Congress when it enacts a statute is not making the application of the federal act dependent on state law.”); cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 424 (1819) (“To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution.”).

In short, no legislature has a monopoly on any particular word in the English language, and no legislature may impose its definition on any other. Congress has the power to define the terms that it uses in its own statutes. A definition is merely a cut-and-paste function. Where you see X, you should read Y. After performing the particular cut and paste, one must analyze the result to see if it runs afoul of any substantive constitutional provision. But the mere fact of a federal definition, for purposes of federal law, does not violate principles of federalism. See Federal Rules of Statutory Interpretation.

Ilya Shapiro is probably right to predict that the “federalism argument” will be rejected by at least eight Justices. But I would go further. Justice Kennedy has strong and sure federalism instincts. When he considers the radical and illogical implications of this particular “federalism argument,” which actually turns federalism on its head, I believe he will not stand alone on this ground.

AMENDMENT: Dale and Ilya Shapiro have pointed out that I overstated Ilya’s prediction. He does not necessarily predict that eight Justices will affirmatively “reject” the federalism argument; after all, some of those eight may not need to reach this argument, and so may say nothing about it. Rather, to be precise, Ilya predicts that eight Justices will not endorse the federalism argument. I predict that the number is nine.