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Is Marriage a Federal Issue?

I've been debating this question with Ed Whelan over on NRO's Bench Memos blog. Setting aside the question whether gay marriage is a good or a bad idea, I argue that FMA proponents have not demonstrated the sort of federal interest that would justify federal intervention, let alone a change to the Constitution. Here are the posts: Ed Whelan, my response, Ed's reply, and my surreply. I'll be on the road today, so if Ed posts a rebuttal, he'll get the last word.

UPDATE: Ed Whelan has the final word here (and I fixed the link to my surreply above).

Duffy Pratt (mail):
There are tons of federal statutes which already use the married/single classification. So, yes, its already a federal issue. If the statutes are now borrowing the various state's definitions of the word, that's something they could change at any time.
6.2.2006 10:23am
SimonD (www):
Whelan links to an op/ed by Adam White, wherein White notes that:
"Federalism" is not synonymous with "states rights." Federalism is an ideological commitment to the appropriate division of power between Federal and state governments. Where the Constitution does not pre-ordain the solution, Federalism calls for a pragmatic apportionment of power, not knee-jerk endorsement of "states' rights."
I accept that in principle, but I'm not sure that the Constitution does not pre-ordain the result in this case: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The powers not delegated to the United States by the Constitution and the amendments thereto may not be exercised by it; where is the United States delegated the power to define marriage?

A "national solution strikes this Federalist as appropriate if only because a national solution seems inevitable," White says; what a terrible intellectual cover for normative preference. Before Fry, I can imagine is seemed pretty inevitable that Federalism was a dead letter. Matters only become inevitable when they are accepted as such.
6.2.2006 10:38am
BobVDV (mail):
I once clerked for a federal judge who would decline requests to marry people by saying "marriage is not a federal offense".
6.2.2006 10:48am
Houston Lawyer:
Is who I rent my house to a federal issue? Is it a federal issue if I sexually pursue my secretary? Is it a federal issue if I want to drive 100 mph on the Katy Freeway?

No one is claiming that Congress currently has the authority to make states adopt a uniform definition of marriage, hence the constitutional amendment.
6.2.2006 11:04am
Tyrone Slothrop (mail) (www):
The link to Adler's sur-reply seems to direct you instead to Whelan's reply.
6.2.2006 11:30am
Thorley Winston (mail) (www):
No one is claiming that Congress currently has the authority to make states adopt a uniform definition of marriage, hence the constitutional amendment.


Exactly, proponents of a FMA are being far more intellectually honest in supporting a constitutional amendment than proponents of SSM who one the one hand claim it's not a federal issue but on the other try to use the federal constitution (14th and 9th Amendments) to try to force States to change their marriage laws.
6.2.2006 11:46am
SLS 1L:
Obvious question: why does something have to be of interest to the federal government to merit a Constitutional amendment? Not having any particular interest in federalism, I find the arguments in favor of this proposition so non-obvious that I'm not even sure what an appropriate rebuttal would be.

Being a supporter of gay marriage, I oppose the FMA on substantive grounds, but I think this federalism argument is bogus.
6.2.2006 11:48am
BobN (mail):
If intellectual honesty were in play, it would be called the Rove Get-Out-the-Vote Amendment.
6.2.2006 12:08pm
bwilliamsdc (mail) (www):

There are tons of federal statutes which already use the married/single classification. So, yes, its already a federal issue. If the statutes are now borrowing the various state's definitions of the word, that's something they could change at any time.

Because the federal government recognizes a state-defined status it doesn't follow that it is (entirely) a federal issue.

For the purposes of the federal government (income tax being the obvious example) marriage is already defined (DOMA); thus, the sole purpose of this FMA is to change marriage as interpreted by the state.

The argument could be made that FMA would protect a solely federal interest by protecting DOMA from being struck down through judicial review -- but that is an unknown at this point. The only known effect of the FMA at this point would be one that solely concerns states.

It very much federalizes an issue that is by definition a state issue - a state-defined status.
6.2.2006 1:03pm
Medis:
I agree that federalism isn't a flag that one can simply waive and win an argument.

But one of the many basic justifications for federalism is that different states should be allowed at least some room to experiment with different solutions to problems. Similarly, another basic justification is that different people may have different societal preferences, and we should allow states at least some room to create different societies. And for the most part, these principles of experimentation and diversity have served us pretty well.

Of course, we also put all sorts of limits on these principles, and we have set new limits over time. There is no doubt that the 14th Amendment in particular represented a significant cutting back on federalism in the name of protecting individual rights. Still, I think that many people continue to find the basic logic of federalism compelling, within these limits.

In light of these ideas, I think we can first ask whether there are some individual rights at stake which the FMA would protect. I have yet to hear much of an argument to that effect, although some seem to be suggesting that there is a civil right not to be subject to decisions by liberal activist judges. I am hoping someone will be willing to explain a bit more what they mean by that.

A second question we can ask is whether some of these traditional rationales for federalism (such as experimentation and social diversity) somehow do not apply to an issue like gay marriage. As I understand it, the basic argument is that there is no way for the harmful effects of these social experiments and social choices to be confined to individual states, and that somehow it is inevitable that gay marriage in some states will undermine the institution of marriage in all states.

It seems to me that this an example of the sort of intuitive taboo reasoning that gayness tends to invoke in many people (although increasingly not in younger people). I'm not sure how, if at all, it is possible to deal with such arguments in a rational manner. Ultimately, it seems to come down to an issue of who has the burden of proof, and if on the basis of their intuitions about the corrupting influence of gay marriage, people demand positive evidence that such corruption will not occur, only time and experience with gay marriage could possibly supply such evidence.

Of course, therein lies the problem--people who are convinced that gay marriage anywhere will corrupt all marriages everywhere don't want there to even limited experimentation with gay marriage, which precludes any possibility of obtaining such evidence.

In any event, for good or ill, there is no serious possibility of the FMA being proposed and ratified. So, the experimentation--which has already started--will in fact occur, and we will get our evidence on the issue of whether gay marriage will in fact corrupt the entire institution of marriage.
6.2.2006 1:39pm
Christopher Cooke (mail):

Is who I rent my house to a federal issue? Is it a federal issue if I sexually pursue my secretary?


Regarding the first question: yes, it can be. See The Fair Housing Act, Title VIII of the Civil Rights Act of 1968.

Regarding the second question: same answer, but see Title VII of the Civil Rights Act of 1964.
6.2.2006 3:49pm
PersonFromPorlock:
Surely no one at this late date is going to argue that marriage doesn't fall under the Commerce Clause? Think of all the wedding rings shipped in interstate commerce, or the rental traffic in regrettable formal wear!
6.2.2006 4:14pm
Cornellian (mail):
Since Raich v. Ashcroft, it's been difficult to think of anything that isn't within federal reach pursuant to the interstate commerce clause. As Thomas himself pointed out, you could ditch the other enumerated federal powers in Article I, since the interstate commerce clause has pretty much swallowed them whole.
6.2.2006 5:26pm
Medis:
Of course, if Congress did something like pass a federal law instituting gay marriage, I strongly suspect that there would suddenly be a renewed interest in finding limits to the Commerce Clause in certain circles (and maybe even in the mind of a certain key Justice).
6.2.2006 6:15pm
Public_Defender (mail):
Whelan is not credible when he argues that gay marriage poses some sort of "extreme" threat to heterosexual marriage. If Whelan were concerned with protecting heterosexual marriage, he should push for a federal amendment barring divorce. By definition, every divorce ends a heterosexual marriage. You can't say anything close when it comes to gay marriage.

No one can reasonably argue that gay marriage poses a greater threat to hetero marriage than divorce. The motive behind the Attack on Marriage amendment is animus against gays, not the "protection" of any marriage.
6.2.2006 6:22pm
Adam White:
SimonD:

Actually, I stand by my comment in the old essay to which Ed so kindly linked.

The Constitution does not pre-ordain an answer with respect to the Federal Marriage Amendment, because the FMA would be a constitutional amendment. Your point would be valid were we debating a Federal Marriage Act. But on matters of constitutional amendment, the Commerce Clause and the Tenth Amendment are nothing more than suggestions.

Thus, in considering the merits of the amendment, we should look to policy, not Lopez and the like. In debating constitutional amendments, we enjoy the freedom that the original Framers and Ratifiers enjoyed because, on this amendment, we are the Framers and Ratifiers.

Also, I don't think my "inevitability" argument is inappropriate "cover" for my normative preferences. In the essay I think I justify my position pretty well on its own; the inevitability argument is in addition to those primary points.
6.2.2006 7:07pm
Adam White:
Incidentally, SimonD, if you don't think that a Constitutional amendment can turn into a federal issue something not covered by the Commerce Clause and the like, then I'd be interested to see whether you think Section 5 of the Fourteenth Amendment was "unconstitutional" when it was ratified.
6.2.2006 7:11pm
Christopher Cooke (mail):
Marriage is only a federal issue if you want it to be one. We can rationally have a system that lets states decide what a marriage is, and the federal government adopts that definition in each state, albeit differently if any states have different definitions. That is how diversity jurisdiction works, and it would be no different with marriage.

While I agree with you that those on the left who argue for a "federalist" (state by state) solution on this issue are probably being hypocritical (or at least inconsistent in other situations), those who say they are "federalists" and favor the amendment are really just threatened by the concept of same sex marriage, and want to kill it once and for all with a constitutional amendment.
6.2.2006 7:30pm
GMUSL Rising 3L (mail):
Yes and no. In my mind, it's only a federal issue (or, more accurately, an interstate issue) because of the Full Faith and Credit clause.

Thanks to the FF&CC, which is otherwise good for marriage, driver's licenses, etc., I suspect that the supporters of gay marriage being a "state" issue are somewhat disingenuous. I can't imagine them realistically advocating that there be a marriage exception to the FF&CC, which is the only way to actually allow EACH STATE to control its own definition of marriage. Otherwise, under tFF&CC, once any state allows gay marriage without a residency requirement (unlike Massachusetts), all other states have to honor what that one state does under the US Constitution.

It kind of blows a hole in that whole "states should determine their own marriage laws because federalism and states rights are good" argument, doesn't it? Then again, I'd be fine with a marriage exception to tFF&CC, but since tFF&CC is constutitional, that would still require a constitutional amendment.

Clearly, there's transit across state lines, marriage is plausibly commerce because of enormous amount of money spent at weddings (not to mention the amount spent on travel by people travelling to the weddings), so you have transit across state lines for commerce, which is certainly much more interstate commerce (though admittedly, a different and much more reasonable prong of IC test) than growing wheat in your own backyard to feed to your own livestock.
6.2.2006 7:32pm
Adam White:
those who say they are "federalists" and favor the amendment are really just threatened by the concept of same sex marriage, and want to kill it once and for all with a constitutional amendment.

That simply isn't so. As I note in that old essay, there are plenty of substantive reasons to support a Federal Marriage Amendment to resolve the issue at the federal level. Let's not devolve to namecalling.

"Federalism" isn't "states rights". It is an appreciation for the separation of powers, the division of government between states and national, and (as the first "Federalists" made clear), where there is no binding law on point, pragmatic allocation of responsibility between the levels of government.

Two borrow a line from Justice Scalia, federalism is a stick that beats both dogs. It's not knee-jerk pro-states-rights-ism.
6.2.2006 9:24pm
Cornellian (mail):
Thanks to the FF&CC, which is otherwise good for marriage, driver's licenses, etc., I suspect that the supporters of gay marriage being a "state" issue are somewhat disingenuous. I can't imagine them realistically advocating that there be a marriage exception to the FF&CC, which is the only way to actually allow EACH STATE to control its own definition of marriage. Otherwise, under tFF&CC, once any state allows gay marriage without a residency requirement (unlike Massachusetts), all other states have to honor what that one state does under the US Constitution.

Do you have any authority at all for your claim that this is how FF&C works? Do you have any explanation for how interracial marriage bans lasted until Loving v. Virginia struck them down on equal protection grounds? On your theory of how FF&C works, they would have been effectively wiped out by the simple expedient of a single state allowing interracial marriage, thus "forcing" all other states to recognize interracial marriage since any couple could go to that state, get married then return home. Do you have any explanation for why Loving v. Virginia didn't even mention any FF&C argument when it involved an out of state marriage valid where the marriage was created?
6.2.2006 11:38pm
Christopher Cooke (mail):

As I note in that old essay, there are plenty of substantive reasons to support a Federal Marriage Amendment to resolve the issue at the federal level.


But isn't the only way the FMA will "resolve the issue" is to outlaw same sex marriages? Am I missing something?
6.2.2006 11:55pm
Medis:
Adam White,

One thing I find interesting about your essay is that I don't see any particular reason to limit your arguments to this one particular issue within marital law, or family law in general. So are you indeed endorsing a general federal takeover of family law--and if not, why not?
6.3.2006 1:12am
Public_Defender (mail):
Whelan rests his argument on the proposition that gay marriage is such an "extreme" threat to heterosexual marriage that a federal consitutional amendment is needed. He cites to Kurtz's argument that the combination of a massive welfare state and (allegedly) gay marriage have decreased marriage rates in Scandanavia. But Kurtz has never been able to show that gay marriage caused any of the problems.

Gay marriage, as proposed in the U.S., would actually protect heterosexual marriage. As a result of bars to gay marriage, gay couples have worked hard to get many (but not nearly all) of the protections of marriage through private contracts. These contracts are now available to unmarried heterosexuals.

Also, many employers have started giving benefits to people living together (gay and straight) without marriage because that's the only way to give the benefits to gay people. By making gay people more dependent on each other instead of the government, gay marriage actually decreases the role of the welfare state.

So unless you are willing to go as far as Virginia (whose law arguably bans even health care proxies), preventing gay marriage encourages gay people to develop quasi-marriage structures. Those quasi-marriage structures become available to heterosexuals, decreasing their incentive to get married.

Allowing gays to marry allows society to more easily police the line between married and unmarried. Prohibiting gays from marrying muddles that line.

If Whelan wants a federal constitutional amendment that would really protect marriage, he should seek one that bans divorce.
6.3.2006 12:19pm
ReaderY:
The states and the people have directed the federal government to intervene in matters previously thought purely local in at least two areas: on the whole issue of race relations from slavery through social exceptance, and on alcohol policy. The first has been widely regarded as a Good Thing, the second as a Bad If Not Downright Dumb Thing.

History will have to tell which precedent this issue more closely resembles. But precedent exists for federalizing matters of pure morality that are thought, rightly or wrongly, to be too critically entwined in the moral fibre of the nation to permit local variance.

After all, Calhoun used to ask why anyone should think a certain "peculiar institution" was any of the Federal government's business -- or why moralmongers should stick their nose into other people's business simply because they thought other people's practices queer or morally repulsive. The moralmongers are often wrong, of course. But every now and then they're right, and thus the Constitution permits them to make their case.

For this reason, the current amendment may well be a bad thing on policy grounds. But it is possible, and there is precedent.
6.4.2006 2:14am
Mark F. (mail):
ReaderY:

Well, slavery was such a great evil that it had to be prohibited by the Federal government for all time. Prohibition was foolishly criminalizing victimless actions across the entire country.

There is a strong libertarian case to be made in favor of making marrige a voluntary contract, privately enforceable, and nothing the state should stick its nose in.

However, almost all of the opposition to gay civil marriage is based on the highly offensive and wrong idea that gay people are a mortal threat to civilization. Whelan doesn't say this, but he doesn't have to. We get the point.
6.4.2006 6:22am
picpoule:
GMUSL nailed it. The Full Faith and Credit Clause is why a constitutional amendment may be necessary some day.
6.4.2006 12:15pm
Adam White:
Christopher: Poor drafting on my part, sort of. I said "a" Federal Marriage Amendment, not "the" Federal Marriage Amendment. My 2004 essay didn't speak in terms of a particular policy proposal; my only point was that national resolution of the issue was not contrary to federalism.

Medis: Good question. My 2004 argument was very context specific, in ways that distinguish the marriage issue from other family law issues.

First, I think the definition of "marriage" is much more central to the vast array of federal matters noted in my essay.

Second, my essay rested in part on the point that the definition of marriage will eventually be settled nationally, either through the courts or through the democratic process. If interest groups were pushing to nationalize all of family law through the courts by relying on the Full Faith and Credit clause and other constitutional provisions, then of course we'd have to consider the propriety of a national resolution of the matter. But I just don't see interest groups pushing a national solution through the courts on other family issues right now, so there's no a need for federalists to resign themselves to seeking a national solution on their part, either.
6.5.2006 12:20am
Medis:
Adam,

I'm not sure I understand your reply, or how to match it up to your actual essay.

On the first point of your reply ("the definition of 'marriage; is much more central to the vast array of federal matters noted in my essay"), here is part of your original argument:

"Most obviously, our national legal and financial systems have already integrated marriage into their basic structures. Insurance, tax, federal criminal law (e.g., spousal privilege), and countless other legal/financial matters depend on marriage. Inconsistency among the states severely hampers commerce, a core Federal concern under Federalist principles."

Now, consider something like divorce law, which regrettably plays a large role in determining who in fact is legally married in this country. Substantive divorce rules vary from state to state, and this issue is "integrated" into countless other legal and financial matters. Moreover, divorce law governs not just who is married, but also what happens after divorce, including various property issues and potentially ongoing financial relationships such as spousal support.

Accordingly, I think an equally good--and in fact much better--case can be made that such inconsistencies in divorce law have in fact "hampered" commerce. And the likely magnitude of this effect is much larger than the effect only allowing gay marriage in some states could ever have, since divorce, unfortunately, ultimately pertains to far more marriages. So why doesn't this part of your argument apply far better to divorce than gay marriage?

And even putting aside the issue of exit rules from marriage, gay marriage is only one of the many entry-rule issues. What about, for example, common law marriages? Again, I might suggest that current variances in state law with respect to that particular issue are at least as much a burden on interstate commerce as gay marriage could ever be.

Or consider this part of your essay: "Finally, the Federal government has a strong interest in the protection of children (Prof. Mary Ann Glendon spoke eloquently to this point last week in the Wall Street Journal). In a nation where freedom of movement is not only a constitutional value but also an increasing reality for mobile families, how will children fare when their family's legal structure changes depending on the state in which they currently move?"

Now we can consider not only the variances in divorce law, but also the variances in custody law. Again, variances in custody law between jurisdictions have a far greater impact on what actually happens to children than gay marriage ever could, because so many more families are impacted. And we could go on to consider all sorts of other family law issues affecting children, like differences in parental rights termination laws, adoption laws, child support laws, third party visitation rights, and so on. In short, all of these other areas of family law also create a situation in which the legal structure of the family can depend on the state in which a child happens to reisde.

In general, it seems to me that all these variances in family law between jurisdictions are already having the effects you anticipate from gay marriage, and to a much greater magnitude. So, unless you can come up with a countervailing reason to keep family law a state and local issue (and this reason must be uniquely inapplicable to gay marriage), in that essay you have effectively made the case for federalizing pretty much all of family law.

Your second point in reply is that "my essay rested in part on the point that the definition of marriage will eventually be settled nationally, either through the courts or through the democratic process." But that wasn't the apparent structure of your essay. Rather, you suggested, "The above pragmatic concerns strongly suggest that a federal resolution of the marriage question is appropriate."

So, in effect I was specifically asking whether you thought federalizing all these other issues would also be "appropriate", regardless of whether doing so was inevitable. And I really don't see what is special about gay marriage in particular, as opposed to all these other family law issues, because they also seem to raise exactly the same sorts of "pragmatic concerns".
6.5.2006 12:35pm