Bench Memos

McConnell on the SSM Cases

I know Ed is not a fan of the federalism argument against Section 3 of the Defense of Marriage Act.  But in Friday’s Wall Street Journal, the Honorable Michael McConnell takes a different view.

 

The leading argument against DOMA all along has been 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. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.

McConnell also argues that the Court should conclude that Prop. 8 supporters lack standing to defend the initiative in federal court.  The combined effect of these two rulings would be to leave the debate over same-sex marriage where it belongs: in the political process within the several states.

 

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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