Just when I thought that the “federalism scholars” who submitted the badly confused amicus brief against DOMA couldn’t get any zanier, along comes Ilya Somin (one of the six signatories) to offer a remarkable claim—that if DOMA is invalidated on federalism grounds, a couple that enters into a lawful same-sex marriage in one state will be entitled to receive federal marriage benefits when they move to a state that does not recognize same-sex marriages.
Those crediting the federalist argument against DOMA have generally been claiming (wrongly) that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. As the snookered George Will put it, “[b]y striking down DOMA …, the court would defer to 50 state governments.”
Somin’s claim is radically different. Under his account, the federal government would not be deferring to and applying the definition of marriage in the state in which a couple resides. Instead, for same-sex couples that lawfully marry in any state that allows same-sex marriage, the federal government would provide federal marriage benefits for those same-sex couples if they live, or if they later move to, a state that doesn’t recognize same-sex marriage. In short, under the false flag of federalism, Somin would have the federal government nationalize federal marriage benefits for same-sex marriages.
Somin’s position also gives the lie to the absurd claim that he and his co-signatories make that DOMA’s definition of marriage for purposes of federal benefits somehow intrudes on state authority over marriage. Whether or not Somin’s position is correct, Somin, by taking it, necessarily acknowledges that it is permissible for federal marriage benefits to apply to those living in a state without tracking that state’s definition of marriage. So much for the federalist argument against DOMA.
Somin makes his claim in the course of contesting the argument by Harvard law professor, and same-sex marriage supporter, Noah Feldman (which I highlighted here) that a ruling against DOMA on federalism grounds would create “legal chaos” and “nightmarish barrage of new litigation.” As Feldman puts it, any state could “creat[e] a Las Vegas-style business in same-sex marriage” by allowing gay couples from around the country to marry there (with no residency requirement). Feldman sketches the ensuing litigation over federal (and state) marriage benefits when a married same-sex couple lives in, or moves to, a state that doesn’t recognize same-sex marriages.
Here is the heart of Somin’s response (emphasis added):
To be honest, I simply don’t see the problem here. If same-sex couples get married in State A, receive federal marriage benefits, and then move to State B, which denies them state-level marriage benefits, there is no need for litigation of any kind. The couple in question will have federal marriage benefits, but no state ones (at least none from State B).
I doubt that Somin is actually correct on this point (which he merely asserts). But it’s quite damning if—especially if—he is right. If he is right, he and the other signatories to the amicus brief of “federalism scholars” have submitted a highly deceptive brief that, in the mistaken name of federalism, would nationalize federal marriage benefits for same-sex spouses. If he is wrong, he has signed his name to an amicus brief without having giving serious attention to what his position actually means.