SSM Supporter: Federalism Ruling Against DOMA Would Create “Legal Chaos”

by Ed Whelan

In “Moderate Path on Gay Marriage Could Be Disaster,” Harvard law professor Noah Feldman, who wants the Court to invalidate DOMA by declaring a general federal constitutional right to same-sex marriage, cogently warns against the “legal chaos” and “nightmarish barrage of new litigation” that will result if the Court strikes down DOMA on federalism grounds:

In the first, most optimistic scenario, one or several marriage-friendly states might allow anyone from any state to get married there, creating a Las Vegas-style business in same-sex marriage. Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out- of-state marriages, and deny them state-level marriage benefits.

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions — across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is.

If no state wanted to attract business by becoming the same-sex-marriage hub for out-of-state residents, then the anomaly would arise when legally married gay couples moved to states that didn’t recognize their unions. Presumably they would nevertheless bring their federal benefits with them — giving rise to the same legal issues just described. The only difference would be that litigation would build up slowly, rather than overnight. And what, pray tell, would happen if some of those couples wanted to get divorced but found themselves in legal limbo because their original states of marriage refused to administer a divorce while they lived far away? Would the federal government treat them as divorced even without a state-issued document to that effect? [Emphasis added.]

It might be helpful to distinguish more carefully between the two distinct sets of effects that Feldman is describing. One is the huge new problem that would result from a federalism ruling against DOMA—the legal confusion (the lack of uniformity) as to federal benefits that would result when same-sex couples marry in one state and live in another (then another, then another). The second set of effects concerns increased disputes over whether a state must recognize same-sex marriages performed in other states. As events to date show, I don’t think that those disputes alone are especially burdensome.

Getting fundamental things wrong has lots of bad consequences. The Court ought to recognize that DOMA is entirely consistent with federalism, and all nine justices ought to vote to uphold it.

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