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Apr 03 2013

The Problem of Marriage Equality Federalism

Noah Feldman, a professor at Harvard Law School, has an interesting column at Bloomberg News that spells out some of the inevitable legal difficulties that would arise if the Supreme Court overrules Section 3 of DOMA on federalism grounds rather than equal protection grounds.

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.
The only difference would be that litigation would build up slowly, rather than overnight. And what, pray tell, would happen if some of those couples wanted to get divorced but found themselves in legal limbo because their original states of marriage refused to administer a divorce while they lived far away? Would the federal government treat them as divorced even without a state- issued document to that effect?

Of course, this has been the problem with DOMA all along. And it’s the sort of thing that the Full Faith and Credit Clause was put into the constitution to avoid.

12 comments

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  1. 1
    Barefoot Bree

    I can’t help but wonder if Supreme Court Justices read columns like that and take them into consideration during their deliberations?

  2. 2
    steve84

    I think all states with same-sex marriage already allow out-of-state couples to get married. Some like MA didn’t initially. Romney resurrected a 1913 law against interracial marriage for that.

    The biggest problem wouldn’t be marriage actually, but divorce. It can be a huge problem, and even impossible, to get a divorce in an anti-gay state.

  3. 3
    baal

    http://lawblog.legalmatch.com/2010/09/07/texas-refuses-to-grant-same-sex-divorce/

    The problem is already here. Ruling for marriage equality on federalism would explode it.

  4. 4
    Scr... Archivist

    Wouldn’t such a situation lead to a case based on the Full Faith and Credit Clause?

    And has anyone started a same-sex marriage case based on that clause yet? That was the first part of the Constitution that came to my mind when the first states started protecting marriage equality. I’m wondering if people are avoiding it for some reason.

  5. 5
    Sastra

    steve84 #2 wrote:

    The biggest problem wouldn’t be marriage actually, but divorce. It can be a huge problem, and even impossible, to get a divorce in an anti-gay state.

    Oh, so THAT’S why they’ve been calling themselves “pro-marriage.”

  6. 6
    Modusoperandi

    So the gayhomos are going to ruin divorce too?

  7. 7
    Lyn Calerdine

    I believe this problem may already occur in a few circumstances where State marriage laws already differ, such as whether a marriage between first cousins in vald. About half the states allow such marriages, half the states do not. I recognize that first cousin marriages are far less common than gay marriages, but questions should have already been raised and resolved. Similarly, how were the State by State issues with interracial marriage resolved before the Loving decision?

  8. 8
    Modusoperandi

    Lyn Calerdine “Similarly, how were the State by State issues with interracial marriage resolved before the Loving decision?”
    Lynchings, mostly.

  9. 9
    cptdoom

    @7 Lyn Calerdine – The issue of first cousin marriages are basically moot, because unless the parties involved inform the state that does not recognize their marriage that they violate the laws, no one would ever know. You don’t have to declare all first cousins when you get a marriage license or have one from another state recognized. When the interracial barriers were in place, there were typically criminal penalties for those couples that entered such marriages, so the couples simply didn’t move to the states with barriers. In fact, I believe the military had a policy of not stationing interracial couples in places where their marriages wouldn’t be recognized.

  10. 10
    Geds

    steve84 @9:47 am: The biggest problem wouldn’t be marriage actually, but divorce. It can be a huge problem, and even impossible, to get a divorce in an anti-gay state.

    There was actually a case like this when I lived down in Texas (all of 1/2010 6/2011). Don’t remember when, exactly, it happened. A married gay couple had moved to Texas from Massachusetts. They wanted a divorce but couldn’t get one. They took the thing to court and the judge decided that they couldn’t get legally divorced in Texas because then Texas would have to recognize gay marriage as a thing.

    That was a bit of an eye opener for me.

  11. 11
    Worldtraveller

    Modus@8: I’m glad I wasn’t drinking anything when I read that.

    Bree@1: I suspect the SC already understand and discuss the ramifications of their choices without reading articles like the one highlighted here. Doesn’t mean they care, of course, or they might want the chaotic situation for other political reasons, but I would be surprised if even the dimmest of the bunch didn’t realize the implications, and it wouldn’t be pointed out by one of the others.

  12. 12
    abb3w

    I think Full Faith and Credit does forestall this — temporarily, while DOMA-2 stands.

    Even if DOMA-3 falls, that merely means that Uncle Sam recognizes your marriage as long as your state of residence does. If you move… as Lyn Calerdine notes at 7, there’s some “public policy” exception that allows one state to refuse to a marriage between cousins from another state. There’s some ambiguities on that in the case of cousins, right now. (I’ve asked several lawyers for what the hell happens, and been politely informed that’s “not my area of expertise”/”not straightforward from the case law”/”sufficiently complex I’d have to bill for advice”.) However… in the case of gay marriage, DOMA-2 can then be viewed as giving a FF&C answer to the question — states do not have to recognize gay marriages from other states. There might be a minor case over whether gay-marriage state AA has to recognize one from gay-marriage state BB, but I can’t even see Scalia being obstinate enough to say no there.

    The catch for the GOP is FF&C clause can cut both ways. Given a majority in the House, cloture in the senate, and a signature from the president (the first two being the larger obstacles), DOMA could be repealed, and the law saying states don’t have to recognize each other’s marriages with one saying they do. (This could most neatly be done by killing the “public policy exception” outright, and requiring all states recognize all of each others’ marriages.) Given the current shifting stances in the senate, that looks plausible circa 2015.

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