Before I go, I wanted to leave you with a few thoughts about these legal issues that go beyond the issue of DOMA and same-sex marriage. As you may have gleaned, it turns out that marriage isn’t the only area where federal law draws upon or relies upon a pre-existing concept under state law. As […]
Author Archive | William Baude, guest-blogging
Congress
By William Baude, guest-blogging on December 16, 2011 11:19 pm in Beyond DOMA, DOMA, Federalism, Proposed Legislation, Same-Sex Marriage
Amidst all of my many posts about what federal courts should do if DOMA is struck down, I thought I should say a little bit about Congress. First — and this may be obvious to some readers but perhaps not to all — Congress could of course fix the choice of law problem by providing […]
A Common-Law Solution
By William Baude, guest-blogging on December 16, 2011 6:05 pm in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
So I’ve explained why I reject two of the three possible approaches that federal courts take to the marital choice of law problem. The one that’s left over is the so-called federal common law approach, where courts craft a common-law doctrine for deciding which state’s marriage law is relevant to a federal statute. You might […]
What Happens to Straight People
By William Baude, guest-blogging on December 16, 2011 3:01 pm in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
Before I get to the last phase of my stint here, I thought it would be helpful for me to address one recurring theme in the comments. John D’s comment this morning is representative: “how are opposite-sex married couples treated in conflict-of-laws situations? We’ll take that, then.” The important thing to recognize is that there […]
What’s Wrong with Klaxon
By William Baude, guest-blogging on December 16, 2011 2:03 am in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
So earlier this morning (yesterday, Eastern Time, which apparently governs the Volokh Conspiracy), I explained why the federal government does indeed need to look in large part to state law when it tries to figure out whether a couple is married. In this post we’ll discuss another alternative solution with a goofy case name: “Klaxon.” […]
What’s Wrong With Borax
Yesterday I outlined the three different ways that courts have dealt with the concept of marriage in federal statutes. I ultimately hope to convince you that they should be using the so-called “common law” approach. But my argument is essentially one of process of elimination. So in this post I’ll explain why the “Borax” method […]
What about Full Faith and Credit?
By William Baude, guest-blogging on December 14, 2011 8:53 pm in Beyond DOMA, Constitutional Law, DOMA, Federalism, Same-Sex Marriage
Before we dive deeper into the federal cases I blogged about this morning, I thought it would be helpful to clarify a point featured in several comments. Namely, isn’t the Full Faith and Credit Clause involved here somewhere? The answer is: not very much, and certainly not enough to make the problem go away. The […]
What Does the Federal Government Do?
So states have different rules about who can get married, and states also have different rules about which state’s law to look to when a same-sex couple moves around the country. Now it’s time to answer the question some of you have been patiently waiting with: what does the federal government normally do about this? […]
Some Questions and Some Answers about Marital Choice of Law
By William Baude, guest-blogging on December 13, 2011 1:41 pm in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
Here are a few follow-up questions to my first post this morning. “Burt Likko” says: Prop. 8 is worded: “…only marriage between a man and a woman is valid or recognized in California.” I have a hard time getting past the plain meaning rule to reach a result that an Iowan or Canadian same-sex marriage […]
Marital Choice-of-Law 101
By William Baude, guest-blogging on December 13, 2011 9:14 am in Beyond DOMA, DOMA, Federalism, Same-Sex Marriage
So we’ve established that in a world without DOMA, state law is the natural place to look to figure out whether a same-sex couple is married. Here is where we meet our first conflict-of-laws problem. You surely know that some states allow same-sex couples to marry, and others do not. So what happens when a […]
Marriage as a Creature of State Law
By William Baude, guest-blogging on December 12, 2011 6:32 pm in Beyond DOMA, Constitutional Law, DOMA, Federalism, Same-Sex Marriage, Uncategorized
A number of commenters have asked about the relationship between law and marriage. Some, for example, have taken issue with the statement in my paper’s abstract that “marriage is primarily a creature of state law.” So I thought it was worth explaining a little but more about the relationship between state law and marriage. Obviously, […]
DOMA and Its Discontents
By William Baude, guest-blogging on December 12, 2011 8:15 am in Beyond DOMA, Constitutional Law, DOMA, Same-Sex Marriage, Uncategorized
Thanks to Eugene and the conspiracy for having me here. In my first post I thought I’d explain what the Defense of Marriage Act does and the circumstances under which it may be held unconstitutional. We can get into the choice-of-law stuff later. (The act, by the way, is known as “DOMA,” which gives rise […]