Justice Kennedy’s Federalism Rationale for Refusing to Perform Marriage Ceremonies

Supreme Court Justice Anthony Kennedy recently explained that he does not perform marriages because of concerns about the implications for federalism [HT: Josh Blackman]:

Justice Kennedy has written all three of the high court’s landmark opinions respecting gay rights, from Romer v. Evans in 1996– which struck down a Colorado voter initiative that abolished antidiscrimination protections based on sexual orientation –to U.S. v. Windsor in June, which invalidated the federal Defense of Marriage Act, the 1996 law forbidding the federal government from recognizing same-sex marriages.

However, speaking earlier this month at the University of California Washington Center, Justice Kennedy said the affianced — whether gay or straight –would have to find someone else to do the honors.

“I have a rule: I don’t do weddings,” Justice Kennedy said. The reason has to do more with another doctrine he has championed: federalism.

“I have a theory that federal judges can’t take authority from state laws,” including those that regulate family relations, he said.

Still, on this matter, the Supreme Court’s swing vote emphasized his own judicial modesty. “I can’t figure out whether it’s a valid theory or not,” he said.

Like Kennedy himself, I find it hard to justify this theory. Federal judges “take authority from state laws” in many cases, such as when they exercise ancillary or pendant jurisdiction over state law causes of action, or when they hear “diversity” cases dealing with state law (when the plaintiff and defendant reside in different states). Federal judges’ procedural authority to hear these cases comes from federal law. But the substantive law that authorizes the lawsuit in the first place comes from the states. More generally, I don’t see how federal judges performing weddings undermines federalism either by allowing states to intrude on federal power or vice versa.

In the post linked above commenting on Kennedy’s speech, Josh Blackman makes a slight error when he writes that federal judges are not allowed to perform marriages in Virginia. In reality, they are allowed to do so, but only if they are Virginia residents. Virginia’s marriage law permitting out of state ministers to perform marriages, but not out of state secular officiants (including judges) probably violates both the Equal Protection Clause of the Fourteenth Amendment, and the Dormant Commerce Clause. It is a clear case of facial discrimination on the basis of religion (because religious officiants are treated more favorably than secular ones), and discrimination against interstate commerce (because out-of-state secular officiants are banned, while in-state ones are not). Both types of discrimination are presumptively unconstitutional under current Supreme Court doctrine.

I should perhaps also note that Josh’s memory is slightly off in regards to my own marriage. We didn’t get married in DC to avoid this annoying Virginia law, but because my then-fiancee preferred a DC site to any of the Virginia sites we looked at. Had she chosen a Virginia site, we would have resorted to one of several options for circumventing the rule.

UPDATE: Josh has updated his post to correct the point regarding my reasons for getting married in DC.