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Response to Randy Barnett on the Chief’s Excellent Hypothetical



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On the Volokh Conspiracy, Randy Barnett argues that Solicitor General Verrilli gave the wrong answer to the Chief Justice’s excellent hypothetical (item 2 here) and that Verrilli should instead have said that there is a federalism problem if the federal government uses a definition of marriage that is more expansive than what some or all states use. I see no merit to Randy’s argument:

1. Randy thinks it unthinkable that “one can be married under federal law and unmarried under state law.” Well, for starters, as I’ve pointed out before, that supposedly unthinkable scenario already happens—surely, thousands and thousands of times every year: Under an Internal Revenue Code provision (26 U.S.C. § 2(b)(2)(C)), the IRS deems a taxpayer married at the close of his taxable year if his or her spouse died during the taxable year. So the taxpayer is married under federal law even though he or she has been unmarried since the spouse’s death under state law. The fact that this example may seem trivial simply highlights that DOMA’s definition of marriage operates only for purposes of provisions of federal law like this one and does not intrude at all on state authority to regulate marriage.

2. Randy thinks it meaningful to argue that some or many supporters of traditional marriage would invoke federalism concerns against such an expansive federal definition of marriage. If they would, they would be wrong to do so. The fact that many folks—including many of those attacking DOMA—resort to opportunistic misuse of principles to advance their favored cause says nothing about which principles are sound.

3. Randy argues that “Congress no more has the power to expand the definition of marriage than it has to contract it …. because defining marriage—like defining property—is a traditional function of the states.” (His emphasis.) It is rather tiresome to have to point out that this assertion obscures the critical point that Congress is merely defining marriage for purposes of provisions of federal law and is not intruding at all on the traditional function of the states. As I showed in this post yesterday (I’ll reply soon to Jonathan Adler’s response to it), federalism concerns do not limit the power of Congress to define property more narrowly, for federal purposes (within the bounds of other constitutional constraints, of course), than states do.

Further, under Randy’s view, Congress would have lacked the power under Article I to define “property” in all federal statutes as excluding slaves, regardless of property law in the South.  Accordingly, if Congress taxed “property,” it would have to tax slaves, and couldn’t disassociate itself from that abominable practice. (Yes, taxing of slaves would impose a cost on slaveowners, but Congress could also fear that such a tax would legitimate, and make Congress complicit in, slavery.) That turns federalism upside down by permitting states to invade the federal realm, just as the striking down of DOMA would do.



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