Archive | Beyond DOMA

Marriage as a Creature of State Law

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, marriage is partly a private, non-governmental act. You can “marry” in the eyes of your religion or your community without ever marrying in the eyes of your state. Or you can have two separate marriage ceremonies — one religious and another one designed to satisfy the state’s requirements — which is what I did when I got married. In that sense, marriage is not just something the government makes up.

But the government also has a lot of rules which depend on whether or not you are married — being married affects your taxes, your health benefits as a federal employee, rights under an ERISA plan, child custody, your right not to testify, and so on. So even if you think the private, non-governmental part of marriage is more important than the government-recognized ceremony, the government still needs a way to figure out who is married and who isn’t. It generally uses state marriage ceremonies (or common-law marriage, now mostly of historical interest) to do so. Of course, you could also try to get rid of all laws that treat married couples differently from unmarried couples, but I no longer think that’s wise, and it’s certainly not going to happen any time soon.

So when I say that “marriage is primarily a creature of state law,” I really mean: “when the law deals with marriage, it’s mostly state law, not federal law, that determines marital validity.” You get a marriage license from the state where [...]

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DOMA and Its Discontents

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 to lots of great puns, from Andrew Koppelman’s Dumb and DOMA, to the title a colleague suggested for my paper: Beyond ThunderDOMA.)

Section Three of DOMA defines marriage for purposes of the thousand-some federal statutes that deal with marriage. It says that for purposes of federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” This is an exception to the usual federal practice, which is to look at state law to decide whether a couple is married. (Another part of the statute deals with states’ refusing to give “full faith and credit” to marriages from other states, but for present purposes, it is mostly unimportant.)

DOMA has become very controversial. A number of trial courts (and at least one appellate judge, acting in his administrative capacity) have held it unconstitutional. Last February, the Obama Administration joined in, and began arguing to the courts that it is unconstitutional.

On what basis? Here is where it gets interesting. The courts and the challengers have not really argued that states must recognize same-sex marriages (as the district court in Perry v. Schwarzenegger held). Instead, they’ve argued that even if states can make their own decision about same-sex marriage, the federal government is constitutionally required to respect the state’s choice.

Doctrinally, these challenges turn on levels of scrutiny and government interests, but the closest analogy might actually be the Supreme Court’s confusing opinion in Romer [...]

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