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Bench Memos

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Question for Randy Barnett and Jonathan Adler



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So, Randy and Jonathan, do you agree with your co-signatory Ilya Somin 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? Do you agree, in other words, that the federalism argument that you’re advancing against DOMA would have the federalism-defeating effect of nationalizing federal marriage benefits for same-sex marriages?

Or do you agree with SSM supporter Noah Feldman that a ruling against DOMA on federalism grounds would create “legal chaos” and “nightmarish barrage of new litigation”?

Or do you have some other position? If so, please explain what it is.

Or do you now recognize that the federalism argument against DOMA is hooey?

Update (around 8:30 p.m.): Away from work since noon, I see that Randy Barnett has kindly provided his answers, and Ilya Somin, in an update appended to his original post, has responded to my critique. Jonathan Adler has also indicated that he will respond to my earlier posts. I’ll let things settle a bit, and, for the sake of domestic bliss, probably let this Easter weekend pass, before I offer some additional commentary.



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