In an update (#2) appended to his original post, Ilya Somin responds to my critique. I pointed out that Somin escapes the problem that Noah Feldman identifies (highlighted here)—namely, that a ruling against DOMA on federalism grounds would create “legal chaos” and a “nightmarish barrage of new litigation”—only by adopting a perverse understanding of federalism in which a single state, by allowing same-sex marriage, could compel the federal government to provide federal marriage benefits for same-sex marriages in all fifty states.
Somin doesn’t dispute that I have correctly identified the consequences of his position. So at least one of the six signatories to the amicus brief arguing that DOMA violates principles of federalism believes that if DOMA is invalidated on federalism grounds, the federal government (absent additional legislation) wouldn’t be deferring to the definition of marriage of the state in which a couple resides. Rather, under Somin’s view, if a same-sex couple lawfully marries in one state (whether or not it’s their state of residence) and lives or moves to a state that doesn’t recognize same-sex marriage, the federal government would provide federal marriage benefits to the same-sex couple in that state.
In fairness to Somin’s co-signatories, let me highlight that Randy Barnett and Jonathan Adler think he’s wrong that the law of the marrying state, rather than the law of the state of residence, would govern federal marriage benefits.
While I’m at it, let me address some of the points Somin does make:
1. Somin contends: “Deferring to the definition of marriage in force in the state where the marriage was contracted is deferring to the states.” (Emphasis in original.) Well, it’s deferring to some of the states—only the ones that allow same-sex marriage. That’s clearly not the deference that the snookered George Will had in mind when he stated that “[b]y striking down DOMA …, the court would defer to 50 state governments.” Nor is it the deference that Michael McConnell was contemplating when he invoked Somin’s amicus brief in wrongly encouraging the Court to rule 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.” (Emphasis added.)
2. Somin contends: “If a same-sex couple migrates, the receiving state can still maintain its refusal to recognize SSM” for purposes of state law.” He’s right, of course. But that’s only because of the fundamental principle that he and his co-signatories miss or obscure: that the federal definition of “marriage” for purposes of provisions of federal law doesn’t intrude one bit on a state’s regulation of marriage.
3. Somin contends: “[A]s a practical matter, we are only talking about a small number of cases here. Gays and lesbians are only about 3% of the population and those who enter SSMs in states that permit it and then move to states that don’t are likely to be a tiny fraction of that.” I don’t understand how this “practical” point can excuse the perversity of enabling one state to compel the federal government to confer federal marriage benefits on same-sex couples in states that don’t recognize same-sex marriage.
4. Somin contends that my supposed “claim that allowing couples that entered same-sex marriages to continue receiving federal marriage benefits when they move to a different state interferes with state definitions of marriage just like DOMA does is also weak.” To be clear, my position is that the federal definition of marriage for purposes of federal law doesn’t interfere at all with state definitions of marriage. My point was different:
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.
5. Somin observes—correctly, I think—that Congress could “choose to condition federal marriage benefits on the law of the domicile state rather than on the law of the state where the marriage was contracted.” (Again, that’s because the federal definition of marriage doesn’t intrude on state authority to regulate marriage.) But he wrongly asserts that his original post “merely assumed the framework outlined in Noah Feldman’s op ed.” It’s because Feldman recognizes that the question is unsettled that he anticipates that a federalism ruling against DOMA would create “legal chaos” and a “nightmarish barrage of new litigation.”