Bench Memos

Sanity Check on Marriage

Is there anyone out there on either side of the marriage debate who actually believes both (1) that the Constitution bars the federal government from defining marriage, for purposes of provisions of federal law only, as a male-female union, and (2) that the Constitution allows states to so define marriage for purposes of state law? Is there anyone out there who even believes that someone could coherently hold both positions?

My questions are prompted by assurances like those offered yesterday by the Second Circuit majority (see point 3 here) that the question whether DOMA violates equal protection “is distinct” from the question whether traditional state marriage laws do. I don’t dispute that the questions involve somewhat different applications of whatever standard of review is deemed to apply. For example, the governmental interests that come most clearly into play may well be different for the federal government than for the states. But in the larger scheme it strikes me as ludicrous to imagine that any intelligent judge might answer the DOMA question one way and the state marriage law question another. And I strongly suspect that this is one point on which I and the proponents of same-sex marriage are in agreement.


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