In his sloppy opinion in Windsor v. United States—the Defense of Marriage Act case now on review in the Supreme Court—Second Circuit chief judge Dennis Jacobs obtusely asserted that DOMA’s definition of marriage for purposes of provisions of federal law only DOMA somehow amounted to “an unprecedented breach of longstanding deference to federalism.” In my recent National Review essay titled “Federalism and Marriage,” I refute that assertion, including in this paragraph:
Congress has often found it convenient to use state-law marital status in federal laws and programs. But it has never accepted state-law marital status as constraining how those laws and programs operate, and there is no reason that it should. For example, under provisions of the Internal Revenue Code, a person who is legally separated from his spouse, but not yet divorced, is treated as unmarried, as is a person whose spouse is a nonresident alien. Likewise, under the immigration laws, a marriage entered into for the purpose of gaining an immigrant’s admission will be disregarded even though that marriage remains valid under state law. How could anyone imagine that federalism means that a state’s authority to regulate marriage for state-law purposes should intrude on how the federal government operates in these and other areas?
Another example that I decided not to include (for space and redundancy reasons) is the Internal Revenue Code provision (26 U.S.C. § 2(b)(2)(C)) that provides that a taxpayer shall be treated as married at the close of his taxable year if his spouse died during the taxable year. If the same illogic were applied to this provision as Jacobs and others apply to DOMA’s definition of marriage, it would be condemned as intruding on the traditional authority of states over vital records by failing to recognize a state’s determination that someone is dead. But just as this tax provision does not in fact intrude at all on state authority and merely operates for purposes of federal law, the same is true for DOMA’s definition of marriage.