Bench Memos

My NR Essay on Federalism and Marriage

The new issue (cover dated Dec. 31) of National Review includes my essay—“Federalism and Marriage: The Supreme Court should stay out of the way”—on the Defense of Marriage Act and Prop 8 cases now before the Supreme Court. The essay is available here to digital subscribers. Here’s the opening paragraph:

When supporters of same-sex marriage attack the federal Defense of Marriage Act, they invoke purported federalism concerns about the authority of the states to regulate marriage. But when they sue to strike down state marriage laws as unconstitutional, those federalism concerns disappear. The Supreme Court’s recent decision to review lower-court rulings against both the Defense of Marriage Act and California’s Proposition 8, which reinstated traditional marriage in that state, provides the Court a clear opportunity to set right the relationship between marriage and federalism. It should rule that both DOMA and Prop 8 are constitutionally sound.

(For anyone who confusedly thinks that invalidating DOMA would advance the cause of federalism, I encourage you to read the piece or, if you don’t have ready access to it, these posts of mine.)


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