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 | DOMA
Social Security Administration Takes Different View of Marital Choice of Law
Chris Geidner (my go-to source these days for post-DOMA legal developments) reports that the Social Security Administration has now developed policies for paying benefits to couples in same-sex marriages. Most interestingly, the SSA has bucked the trend in other executive agencies of paying benefits to all couples whose marriage was validly celebrated. Instead, the SSA […]
Civil Unions and Federal Law
A commenter to my last DOMA/choice-of-law post asks– why not just have federal law recognize all state-law civil unions? Why insist that a legal union be labeled “marriage” to count federally as a marriage? There are two slightly different versions of this question, which in my view have different answers. Version one: Under current law, […]
Cozen O’Connor v. Tobits: A Questionable Resolution of Some Complicated Choice of Law Problems
Thanks to the ever-alert Chris Geidner, I saw this post-DOMA decision by a federal district court in Pennsylvania, which is a good example of how complicated the post-DOMA choice-of-law problems can be (and how hard it is to get them right). The case is an interpleader action dealing with ERISA problems (bear with me!) arising […]
Federal Court Orders Interstate Recognition of Same-Sex Marriage
As readers of the VC all surely know, the Supreme Court’s decision last month in Windsor struck down Section 3 of DOMA, which restricts the recognition of marriage for purposes of federal statutes. One of the big unanswered questions after Windsor was what would happen to Section 2 of DOMA, and more generally the question […]
Did the Obama Administration have a Duty to Defend DOMA?
By Ilya Somin on June 30, 2013 5:20 pm in Constitutional Theory, DOMA, Gay Marriage, Gay Rights, Presidency
I have a somewhat different perspective than co-blogger Todd Zywicki on the Obama administration’s decision not to defend DOMA in court. In my view, the President’s duty to uphold the Constitution supersedes any obligation he might have to defend a federal statute. Therefore, if he sincerely believes that a federal law is unconstitutional, he should […]
Right, Left, and the Standing Issues in the Gay Marriage Cases
Both of today’s gay marriage cases raised complex issues of whether the parties had “standing” to appear in federal court. In the Windsor case striking down Section 3 of DOMA, the Obama Administration’s refusal to defend DOMA led the Bipartisan Legislative Assistance Group, made up of members of Congress, to undertake the task. In Hollingsworth […]
The Impact of Today’s Gay Marriage Decisions
It may be a long time before the effects of today’s gay marriage decisions are fully evident. But it seems clear that they represent important progress for same-sex marriage and gay rights more generally. The DOMA case is also a modest success for those who seek to enforce constitutional limits on federal power. Obviously, the […]
The DOMA Decision and Federalism
Justice Anthony Kennedy’s majority opinion for the Court in the DOMA case relies partly on federalism considerations, striking down Section 3 of DOMA in part because it goes beyond the usual scope of federal authority. In reaching this conclusion, it cites (among other sources) the amicus brief submitted by several federalism scholars, including co-bloggers Randy […]
DOMA Goes Down
In a 5-4 opinion, authored by Justice Kennedy, the Supreme Court declares Section 3 of DOMA unconstitutional. It’s an Equal Protection holding, informed by federalism principles. Here is how Justice Kennedy’s opinion for the Court concludes: The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit […]
Linda Greenhouse’s Misrepresentation of the Federalism Argument Against DOMA
By Ilya Somin on April 4, 2013 2:16 pm in DOMA, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief co-signed by several federalism scholars, including co-bloggers Randy Barnett, Jonathan Adler, Dale Carpenter, and myself. She claims that it is a “Trojan horse” for an […]
DOMA and Definitions – A Final Comment
In his last post on the subject, Nick Rosenkranz concludes that “the mere fact of a federal definition, for purposes of federal law, does not violate principles of federalism.” On this we are entirely agreed. And if all Congress sought to do with Section 3 of DOMA was to define the semantic meaning of a […]
The Exact Same Word May Mean Different Things For Purposes of State Law and Federal Law
Section 3 of the Defense of Marriage Act (DOMA) defines the word “marriage” for purposes of federal law. In a recent post, Randy argues that this provision must be unconstitutional, because otherwise one could be “married” under state law but not under federal law, or vice versa, and “that is crazy.” With all due respect, […]
Commentary on DOMA and Federalism
By Jonathan H. Adler on March 29, 2013 7:02 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention. Here’s a brief round-up of some recent commentary: Mike Dorf, “The Federalism Argument that Should Have Been Made Against DOMA” – arguing that DOMA’s opponents missed an opportunity at […]
Can the Federal Government Define “Property” For Purposes of Federal Law? – A Response to Orin
In a post below, Orin notes that many federal statutes define the meaning of the term “property,” even though property is generally defined under state law. If this is so, Orin understandably wonders, how could there be a problem with Congress defining marriage for purposes of federal law in DOMA? The short answer to Orin […]