The Corner

The Counter Argument

Smart email in response to my syndicated column from a guy studying law across the pond:


The problem with the federalism argument, which you don’t acknowledge in your recent column, is that marriage is pretty meaningless if it’s a status that depends on geography. What happens when a gay Mass. married couple relocates to Texas, which doesn’t recognize homosexual marriage. Are they still married? If not, then it seems that we now have an even worse civil rights violation than before (if that’s what it was before Goodridge). The straight husband and wife move to Texas, and they’re still married. The gay couple, once married, now is not. Or does federalism just give Texas the right not to perform same-sex wedding ceremonies? How is the gay no-longer-married couple in Texas to fill out federal income tax forms–married or separate? If the gay no-longer-married couple separate, must they go back to Mass. for a divorce? Who has a right to their jointly-owned house in Texas in the meantime? If they had adopted a child in Mass., how do the Texas courts decide custody issue? The Texas statutes on custody (like nearly all states) on assume there are two spouses, and the spouse who is not awarded primary custody has specified visitation rights.

These questions–and thousands of similar ones–show that marriage, civil unions, and the like, cannot be settled on a state-by-state basis. I’m a huge fan of federalism. I prefer a constitution to be as substance-free as possible. But I’m afraid in this case it just won’t work.

That said, I don’t support the FMA in its current form. It merely gives judges a “conservative” tool to fight it out with courts like the Mass. Sup. Ct. Judges remain the policy makers, and that’s bad.

The horribly painful truth is that what we actually need is an amendment that gives Congress the power to define and regulate marriage and/or domestic partnerships. The precedent for this is the 14th Amendment, which gave Congress the power to enforce equal rights. Congress is nearly the last body on earth that I would like to see in charge of marriage policy. But it’s better than having the blue-state supreme courts impose same-sex marriage on everyone, which is the only alternative.

[Name withheld]

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