Tomorrow I’ll be discussing the Court’s decision in United States v. Windsor with Professor Lynn Wardle of BYU Law School. We’ll be there at the invitation of the Duquesne University Law School student chapter of the Federalist Society. The event begins at Noon.
Archive | Beyond DOMA
State Denies In-State Tuition to Same-Sex Spouse of a Servicemember
The effects of federal recognition of same-sex marriages across the full spectrum of federal benefits, including for those domiciled in states that ban the recognition of their marriages for state purposes, are bubbling up on an almost daily basis. According to the Dallas Voice, the University of Texas-San Antonio (UTSA) has denied an in-state tuition […]
DOMA and Dignity
By Dale Carpenter on September 26, 2013 9:43 pm in Beyond DOMA, Federalism, Fifth Amendment, Gay Marriage, Same-Sex Marriage, Sexual Orientation
Why is the Defense of Marriage Act unconstitutional? Here are two propositions that United States v. Windsor might be thought to stand for: (1) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional intrusion on federalism (a structural claim); or (2) The federal government’s decision not to recognize state-sanctioned marriages of same-sex […]
Labor Department Extends ERISA Protections to Same-Sex Spouses
By Dale Carpenter on September 18, 2013 11:04 pm in Beyond DOMA, ERISA, Gay Marriage, Gay Rights, Same-Sex Marriage
The effect of United States v. Windsor continues to ripple through federal law, expanding by leaps and bounds the rights and protections afforded to same-sex spouses. The effect has been magnified by a friendly federal bureaucracy under the Obama administration, which is widely adopting a place-of-celebration rule for recognizing same-sex marriages under federal laws using […]
VA Must Extend Benefits to Married Same-Sex Couples, District Court Says
By Dale Carpenter on August 30, 2013 3:25 pm in Beyond DOMA, Constitutional Law, Equal Protection, Sexual Orientation, Supreme Court
In the aftermath of United States v. Windsor, the Obama administration is adopting a generous position on the availability of federal benefits to married same-sex couples, as co-blogger Will Baude pointed out yesterday in a post on the IRS ruling regarding their federal tax status. So far, in contrast to their almost open resistance to Lawrence […]
Interstitial Law
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 […]
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 […]