The Chief Justice’s Hypo and the Definition of Marriage

Yesterday Ed highlighted an exchange between Chief Justice Roberts and the Solicitor General that purportedly illustrates the weakness of any federalism objections to Section 3 of the Defense of Marriage Act (DOMA).  As Randy Barnett explains here, it really just shows the SG’s error because defining marriage, as an institution, is the province of the states. The idea that a couple could be “married” under federal law, but not state law, is ridiculous.  

In another post, Ed tries to show that the federal government has unquestioned (and, apparently, unlimited) authority to define terms and institutions for purposes of federal law.

Property law, like marriage, is a matter within state authority. The federal government provides a tax deduction for mortgage interest on a taxpayer’s primary residence. Suppose the state of Massachusetts were to redefine “residence” to include an automobile. Would the federal government be obligated to give federal taxpayers in Massachusetts a deduction for the interest on their car loan? Or could the federal government, without intruding on state authority over property law, define residence for purposes of federal law to exclude automobiles?

The triviality of Ed’s hypo here is telling.  Of course the federal government could define “residence” in ways that conflict with state law.  But so what? The federal government can define “flapdoodle” however it wants too, and state laws on this point are irrelevant.  Note, however, what the federal government could not do.  It could not redefine “property” for purposes of federal law to exclude automobiles or other forms of property recognized under state law.  Indeed, when the federal government itself creates an interest that replicates property, as traditionally understood, courts often recognize this as property even when the federal government tries to define it as something else.  This is because property, as a legal institution, is a matter reserved to the states.  So while we agree that the federal government may define terms where such definitions are necessary and proper to the execution of duly authorized federal law, it is incontrovertible that such authority has limits.

The real question is whether “marriage” is among the foundational legal institutions in our common law tradition, or whether it’s the sort of rather trivial thing readily manipulated by legislative whim — is it more like “property” or more like “residence.”  I find it odd that proponents of traditional marriage are so ready to suggest marriage would fall in this latter category.

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