Answers to Ed Whelan’s Questions

Over on Bench Memos Ed Whelan asks some questions.

QUESTION:  So, Randy and Jonathan, do you agree with your co-signatory Ilya Somin that if DOMA is invalidated on federalism grounds, a couple that enters into a lawful same-sex marriage in one state will be entitled to receive federal marriage benefits when they move to a state that does not recognize same-sex marriages? Do you agree, in other words, that the federalism argument that you’re advancing against DOMA would have the federalism-defeating effect of nationalizing federal marriage benefits for same-sex marriages?

ANSWER:   Ed, thanks for asking for our views on this question.  Jonathan, and also Dale, can speak for themselves, but I do not agree with Ilya about this, for the reason you intimate.  I agree with you here when you say “I doubt that Somin is actually correct on this point (which he merely asserts).”  As you know, I often agree with you, as I did about the standing issue with respect to Proposition 8.  But this provides me the opportunity to stress that the signatories of the federalism scholars brief hold a variety of views on the Constitution and federalism in general, and on same-sex marriage in particular.  What we all agree about is that Section 3 of DOMA — as drafted — is unconstitutional for the reasons we expressed in our brief, which we all actively participated in drafting.   No doubt there are other issues like this one on which we will disagree.

QUESTION:  Or do you agree with SSM supporter Noah Feldman that a ruling against DOMA on federalism grounds would create “legal chaos” and “nightmarish barrage of new litigation”?

ANSWER:  I do not agree about with Noah Feldman about this.  Your own position contemplates the bifurcation of state marriage regulations and federal benefits, which you apparently do not view as “legal chaos.”  The only question is when and how that bifurcation occurs.  Feldman’s position is really that, to avoid “legal chaos,” we need a national definition of marriage for all purposes that would supplant 50-state regulation.  Do you agree with Feldman about this?  (I think I already know the answer.)   Federalism can be messy, requiring common law choice-of-law doctrines to decide which law governs when more than one state’s laws may govern.  This is one reason why constitutional scholars like Erwin Chemerinsky and Noah Feldman hold no brief for federalism on this issue, as on others.

QUESTION:  Or do you have some other position? If so, please explain what it is.

ANSWER:  I think the federal benefits can be limited to the marriage definition governing the state of domicile, along with whether the domiciliary state gives full faith and credit to the same-sex marriages of other states, which it is  free to do under Section 2 of DOMA.   There is nothing particularly outlandish about this.

QUESTION:  Or do you now recognize that the federalism argument against DOMA is hooey?

ANSWER:  Not at all.  Again, choice of law is a normal issue that arises within a federal system.  We must now deal with 50 states, each with their own laws governing such fundamental issues as murder, rape, armed robbery, welfare benefits and, yes, family law and marriage.  Those of us who believe in federalism think that its costs are more than outweighed by its benefits.

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