Bench Memos

Marriage & the States

I am a little puzzled by Ed Whelan’s post below. That Congress can proscribe conduct in federal territories and was able to condition the admission of Utah and other states on the abolition of polgamy hardly establishes that marriage is or was a “federal” issue. By Ed’s logic, the federal government would have a plenary police power because it has such authority over federal territories and can impose nearly any condition on the entry of new states. Utah was required to create and maintain public schools as a condition of its entry into the union, but this hardly establishes a federal power to impose such requirements on pre-existing states or transforms public education into a federal issue. Like other aspects of family law, marriage has been a state matter except in those instances in which there is a clear federal nexus — such as interstate travel, presence in a federal territory, or the need to define a family unit for purposes of the federal income tax. On this point, I believe Rauch is correct.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

Most Popular

Culture

Jussie Smollett Changes His Story Again

The actor Jussie Smollett continues to talk about the alleged January 29 attack on him during a frigid night in Chicago, giving Good Morning America his fullest description yet of his claims. It differs substantially from what he told police initially after the alleged assault. Smollett told GMA that the ... Read More
Books

Why Is Lin-Manuel Miranda Throwing Away His Shot?

Everybody needs a vacation, and after Hamilton maybe Lin-Manuel Miranda needed one more than most. At some point, though, relaxing becomes loafing. Miranda has a wonderful gift, but what he’s done with it lately is unconscionable. This week marks four years since Miranda’s musical masterpiece Hamilton ... Read More