The opinion is today’s Golinski v. United States Office of Personnel Mgmt. (N.D. Cal. Feb. 22, 2012). The conclusion: “In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or […]
Archive | DOMA
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 […]
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 […]
Do Presidents Have a Duty to Defend the Constitutionality of Laws they Believe to be Unconstitutional?
By Ilya Somin on February 23, 2011 11:45 pm in Constitutional Law, Constitutional Theory, DOMA, Executive Branch, Gay Marriage
The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that […]