Windsor, federalism, and family equality

Columbia Law Review

Volumn 113, Issue 10, 2013, Pages 156-179

  Joslin, Courtney G ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84886503581     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (157)

1. United States v. Windsor, No. 12-307, 2013 U.S. LEXIS 4921 (U.S. June 26, 2013).
2. Section 3 of DOMA provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7 (2012). As a result of section 3, married same-sex spouses were denied over 1,000 federal marital benefits. Letter from Dayna K. Shah, Assoc. Gen. Counsel, U.S. Gen. Accounting Office, to Bill Frist, Majority Leader, U.S. Senate (Jan. 23, 2004), available at http://www.gao.gov/new.items/d04353r.pdf (on file with the Columbia Law Review).
3. Windsor, 2013 U.S. LEXIS 4921, at 47.
4. In addition to Windsor, there were a number of other cases challenging section 3 of DOMA. Gay & Lesbian Advocates & Defenders, Top Ten Things You Should Know About DOMA and the U.S. Supreme Court 1-2 (2012),available at http://www.glad.org/uploads/docs/publications/doma-top10-faq.pdf (on file with the Columbia Law Review) (listing such cases).
5. Edie Windsor only brought an equal protection claim. Amended Complaint 82-85, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) (No. 10 Civ. 8435 (BSJ)(JCF)), 2011 WL 1302444, at 10. Parties in other challenges to section 3, however, raised additional claims, including Tenth Amendment and Spending Clause claims. E.g., Complaint 80-98, Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234 (D. Mass. 2010) (No. 1:09-11156-JLT), 2009 WL 1995808, at 22-24.
6. Brief on the Merits for Respondent Edith Schlain Windsor at 14-15, Windsor, 2013 U.S. LEXIS 4921 (No. 12-307), 2013 U.S. S. Ct. Briefs LEXIS 997, at 26-27 ("DOMA's discriminatory treatment of married gay couples violates Ms. Windsor's right to the equal protection of the laws as guaranteed by the Fifth Amendment.").
7. supra note 5 (noting State of Massachusetts raised two claims: Tenth Amendment claim and Spending Clause claim).
8. Jack M. Balkin, Be Careful What You Wish For Department: Federal District Court Strikes Down DOMA, Balkinization (July 8, 2010, 6:35 PM), http://balkin.blogspot.com/2010/07/be-careful-what-you-wish-for-departme nt.html (on file with the Columbia Law Review) (arguing overturning DOMA on Tenth Amendment grounds could lead to attacks on federal programs)
9. Jason Mazzone, DOMA & Federalism, Balkinization (Dec. 9, 2012, 11:08 PM), http://balkin.blogspot.com/2012/12/doma-federalism.html (on file with the Columbia Law Review) (arguing two approaches to federalism could lead to unexpected conclusions about DOMA).
10. Linda Greenhouse, Trojan Horse, N.Y. Times: Opinionator (Apr. 3, 2013, 9:00 PM), http://opinionator.blogs.nytimes.com/2013/04/03/trojan-horse/?_r=0 (on file with the Columbia Law Review) (arguing "striking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it").
11. Mary Bonauto & Paul Smith, Who's Afraid of Federalism?, ACSblog (Apr. 17, 2013), http://www.acslaw.org/acsblog/who's-afraid-of-federalism (on file with the Columbia Law Review) ("We have always felt that this limited federalism aspect of the DOMA litigation is also helpful on the equal protection challenge.").
12. Nan D. Hunter, Living with Lawrence, 88 Minn. L. Rev. 1103, 1103 (2004) ("The Supreme Court's decision in Lawrence v. Texas is easy to read, but difficult to pin down." (footnote omitted)).
13. Neomi Rao, The Trouble with Dignity and Rights of Recognition, 99 Va. L. Rev. Online 29, 31 (2013), http://www.virginialawreview.org/sites/virginialawreview.org/files/Rao.p df (on file with the Columbia Law Review) ("The particular constitutional guarantee in Windsor is hard to identify amidst the various rationales.")
14. Randy Barnett, Federalism Marries Liberty in the DOMA Decision, SCOTUSblog (June 26, 2013, 3:37 PM), http://www.scotusblog.com/2013/06/federalism-marries-liberty-in-the-doma -decision/ (on file with the Columbia Law Review) ("Because the logic of Justice Kennedy's opinion for the majority in Windsor is novel, it is likely to confuse observers as it seems to have confused the dissenters.").
15. United States v. Windsor, No. 12-307, 2013 U.S. LEXIS 4921, at 77 (U.S. June 26, 2013) (Scalia, J., dissenting) ("For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations-initially fooling many readers, I am sure, into thinking that this is a federalism opinion.").
16. Id. at 52 (Roberts, C.J., dissenting) (stating "it is undeniable" majority's judgment "is based on federalism").
17. Ilya Somin, The Impact of Today's Gay Marriage Decision, Volokh Conspiracy (June 26, 2013, 1:07 PM), http://www.volokh.com/2013/06/26/the-impact-of-todays-gay-marriagedecisi ons/(on file with the Columbia Law Review) ("Much of the DOMA decision's reasoning is based on federalism considerations.")
18. Damon W. Root, Federalism and Liberty in the Supreme Court's Gay Marriage Cases, Reason.com: Hit & Run (June 26, 2013, 12:17 PM), http://reason.com/blog/2013/06/26/federalism-and-liberty-in-the-supreme- co (on file with the Columbia Law Review) ("In his majority opinion today invaliding Section 3 of the 1996 Defense of Marriage Act, Justice Anthony Kennedy employed two of the most common themes in his jurisprudence: federalism and liberty.").
19. In a companion piece, I explore in more detail the historical accuracy of the categorical family status federalism argument. Courtney G. Joslin, Federalism and Family Status (forthcoming) [hereinafter Joslin, Family Status] (on file with the Columbia Law Review).
20. David B. Cruz, The Defense of Marriage Act and Uncategorical Federalism, 19 Wm. & Mary Bill Rts. J. 805, 805 (2011) (using phrase "categorical federalism argument" to refer to argument that federal government categorically lacks authority over marriage)
21. id. at 809 ("The district court's categorical argument [in Massachusetts] that Congress cannot regulate domestic relations was perhaps stronger than its lack of enumerated power argument....").
22. Brief of Federalism Scholars as Amici Curiae in Support of Respondent Windsor at 2, Windsor, 2013 U.S. LEXIS 4921 (No. 12-307), 2013 U.S. S. Ct. Briefs LEXIS 1402, at 9 [hereinafter Brief of Federalism Scholars]. The Federalism Scholars stated that this question with regard to Congress's power had to be answered prior to considering whether section 3 violated principles of equal protection. Id. at 2 ("Before this Court addresses whether DOMA denies equal protection of the laws, there is a prior question of federal power.").
23. Jill Elaine Hasday, The Canon of Family Law, 57 Stan. L. Rev. 825, 892 (2004) [hereinafter Hasday, Family Law].
24. Id. at 874.
25. Id. at 872-73 ("It is commonplace for courts and judges to assert that family law is, and always has been, entirely a matter of state government.").
26. 419 U.S. 393, 404 (1975). In Sosna, the Supreme Court upheld a state statutory provision that required a party to reside in the state for one year prior to filing a divorce petition.
27. Id. at 395-96.
28. Ankenbrandt v. Richards, 504 U.S. 689 (1992).
29. Hasday, Family Law, supra note 19, at 872-73; see also Ankenbrandt, 504 U.S. at 694-95 ("[W]e are unwilling to cast aside an understood rule that has been recognized for nearly a century and a half...."); id. at 715 (Blackmun, J., concurring in the judgment) (describing "unbroken and unchallenged practice...of declining to hear certain domestic relations cases"). 25. 542 U.S. 1, 12 (2004) (alteration in Newdow) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)). Similar sentiments were also expressed in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), in which the Court struck down statutes for being beyond Congress's authority. See id. at 615-16 (rejecting petitioners' argument because their reasoning "will not limit Congress to regulating violence [against women] but may, as we suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation").
30. I use the phrase categorical family law federalism to refer to the more sweeping argument that the entire area of family law is reserved to the states.
31. A number of scholars have persuasively critiqued the sweeping categorical family law federalism claim. See, e.g., Kristin A. Collins, Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of States' Rights, 26 Cardozo L. Rev. 1761, 1768 (2005) ("[T]he state sovereignty paradigm is not a fixed federalism principle....")
32. Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. Rev. 1297, 1298 (1998) [hereinafter Hasday, Family Reconstructed] ("[E]xclusive localism in family law simply misdescribes American history....")
33. Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 1035 (2002) (interpreting history of Nineteenth Amendment to show "nation has intervened in matters concerning domestic relations, over claims that the family is a sphere of local self-government").
34. The Federalism Scholars' brief was signed by the following law professors: Jonathan Adler, Lynn Baker, Randy Barnett, Dale Carpenter, Ilya Somin, and Ernest Young. Brief of Federalism Scholars, supra note 18, at 1.
35. Id. at 3-4
36. id. at 26-27 ("We do not maintain that Congress may not legislate in any way touching domestic relations, and in fact many federal regulations do affect family relations.").
37. Hasday, Family Reconstructed, supra note 27, at 1376.
38. Courtney G. Joslin, Marriage, Biology, and Federal Benefits, 98 Iowa L. Rev. 1467, 1483 (2013) (noting Title II of Social Security Act "was and continues to be one of the largest federal benefits programs").
39. Hasday, Family Law, supra note 19, at 876 (arguing "because the social security program creates such important rights tied to family status, the program is also concerned with regulating the creation and dissolution of the family relationships that will be legally recognized for its purposes").
40. For example, in the 1980s, Congress required all states to adopt child support guidelines. Sylvia Law, Families and Federalism, 4 Wash. U. J.L. & Pol'y 175, 189 (2000). And federal laws now govern the recognition and enforcement of child support and child custody orders.
41. Courtney G. Joslin, Interstate Recognition of Parentage in a Time of Disharmony: Same-Sex Parent Families and Beyond, 70 Ohio St. L.J. 563, 575-76 (2009).
42. Brief of Federalism Scholars, supra note 18, at 3-4 ("Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field-such as the power to define the basic status relationships of parent, child, and spouse-are reserved to the States.") also id. at 27 ("This Court has frequently, and recently, echoed that determining family status remains a State power."). The Federalism Scholars' brief made other federalism-based arguments as well. For example, the brief asserted that DOMA "is also not 'plainly adapted' to an enumerated end, because it applies to more than 1100 federal statutes at once." Id. at 3 (citation omitted).
43. 698 F. Supp. 2d 234 (D. Mass. 2010) (holding DOMA unconstitutional violation of state sovereignty), aff'd, 682 F.3d 1 (1st Cir. 2012), cert. denied, 81 U.S.L.W. 3714 (U.S. 2013). The Massachusetts case was slightly ahead of Windsor in the pipeline. Petition for Writ of Certiorari, Massachusetts, 81 U.S.L.W. 3714 (No. 12-15), 2012 WL 2586937. Many people speculated that the Court granted certiorari in Windsor rather than in the Massachusetts case because Justice Kagan would have recused herself in the latter. See, e.g., Lyle Denniston, Kagan, DOMA, and Recusal, SCOTUSBlog (Nov. 2, 2012, 4:59 PM), http://www.scotusblog.com/?p=154714 (on file with the Columbia Law Review). The Supreme Court ultimately denied certiorari in the Massachusetts case the day after the Windsor decision was released. Massachusetts, 81 U.S.L.W. 3714.
44. Massachusetts, 698 F. Supp. 2d at 249; see also id. at 250 ("The history of the regulation of marital status determinations therefore suggests that this area of concern is an attribute of state sovereignty, which is 'truly local' in character.").
45. Transcript of Oral Argument at 76, United States v. Windsor, No. 12-307, 2013 U.S. LEXIS 4921 (U.S. June 26, 2013) [hereinafter Transcript of Oral Argument],available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-307_c 18e.pdf (on file with the Columbia Law Review).
46. Douglas NeJaime, The Legal Mobilization Dilemma, 61 Emory L.J. 663, 686 n.139 (2012)
47. Carlos A. Ball, When May a President Refuse to Defend a Statute? The Obama Administration and DOMA, 106 Nw. U. L. Rev. Colloquy 77, 94 & n.88 (2011), http://www.law.northwestern.edu/lawreview/colloquy/2011/21/LRColl2011n21 Ball.pdf (on file with the Columbia Law Review).
48. Transcript of Oral Argument, supra note 37, at 76.
49. Id. at 84 ("[W]e don't [get to equal protection] unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise.... [W]hat is the Federal interest in enacting this statute and is it a valid Federal interest assuming-before we get to the equal protection analysis?").
50. Brief on the Merits for the States of New York et al. as Amici Curiae in Support of Respondent Edith Schlain Windsor at 3, Windsor, 2013 U.S. LEXIS 4921 (No. 12-307), 2013 U.S. S. Ct. Briefs LEXIS 1363, at 6.
51. Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 11-12 (1st Cir. 2012) ("In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce [sic] the need for closer than usual scrutiny of DOMA's justifications and diminish somewhat the deference ordinarily accorded.").
52. The amicus brief of the Family Law Scholars similarly focused its analysis on highlighting DOMA's unusualness. See, e.g., Brief on the Merits of Amici Curiae Family Law Professors and the American Academy of Matrimonial Lawyers in Support of Respondent Edith Schlain Windsor at 36, Windsor, 2013 U.S. LEXIS 4921 (No. 12-307), 2013 U.S. S. Ct. Briefs LEXIS 1364, at 57 (explaining how "DOMA is exceptional").
53. Massachusetts, 682 F.3d at 11-12.
54. Id. at 12 ("These consequences do not violate the Tenth Amendment or Spending Clause....").
55. Id. at 13 ("Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.").
56. A third and potential fourth federalism claim were raised in the Federalism Scholars' brief. As articulated by the brief's author Ernest Young, these arguments are as follows: that the definition of marriage in section 3 is "not 'incidental' to the accomplishment of some other enumerated end, like preventing immigration fraud or conserving revenue," and that "[b]ecause DOMA applies in shotgun fashion enumerated power...."). The district court decision in the Massachusetts case also concluded that section 3 violated the Spending Clause "by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs." Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 236 (D. Mass. 2010).
57. Notably, at oral arguments both the Solicitor General and counsel for Edie Windsor disclaimed reliance on the first variant-categorical family status federalism-but embraced the second-the unusualness trigger theory. For example, both attorneys were asked repeatedly whether principles of federalism were an independent ground for striking down section 3. Both counsel suggested that the answer to that question was no. See, e.g., Transcript of Oral Argument, supra note 37, at 81 (Verrilli, Solicitor General) (answering, in response to question from Chief Justice Roberts, "I don't think it would raise a federalism problem")
58. see also id. at 96-97 (Roberts, C.J.) (remarking to counsel for Edie Windsor, "You're following the lead of the Solicitor General and returning to the Equal Protection Clause every time I ask a federalism question. Is there any problem under federalism principles?"). But both counsel repeatedly suggested that DOMA's unusualness was relevant to whether the statute violated principles of equal protection.
59. Id. at 82 (Verrilli, Solicitor General) ("Well, with respect to Section 3 of DOMA, the problem is an equal protection problem from the point of view of the United States.")
60. see also id. at 85 (Verrilli, Solicitor General) ("[W]e don't think that Section 3 apart from equal protection analysis raises a federalism problem.").
61. Somin, supra note 15.
62. Mike Dorf, The (Ir)Relevance of Novelty as a Constitutional Criterion, Dorf on Law (July 1, 2013, 12:04 AM), http://www.dorfonlaw.org/2013/07/the-irrelevance-of-novelty-as.html (on file with the Columbia Law Review) (arguing "no Justice endorsed the freestanding federalism argument").
63. Windsor, 2013 U.S. LEXIS 4921, at 77 (Scalia, J., dissenting) ("For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations-initially fooling many readers, I am sure, into thinking that this is a federalism opinion.").
64. Id. at 52 (Roberts, C.J., dissenting). As Justice Scalia points out in his dissent, whether the decision turned on principles of federalism may impact the relevance of the decision to challenges to state marriage bans. See id. at 87-97 (Scalia, J., dissenting). If the decision is federalism-based, it may be of less relevance to such a challenge and vice versa.
65. Rao, supra note 12, at 31 ("Nor does the Court find that DOMA exceeds the scope of federal power.").
66. Windsor, 2013 U.S. LEXIS 4921, at37.
67. Alberto R. Gonzales & David N. Strange, Op-Ed., What the Court Didn't Say, N.Y. Times (July 17, 2013), http://www.nytimes.com/2013/07/18/opinion/what-the-court-didntsay.html (on file with the Columbia Law Review) ("[T]he ruling also explicitly affirmed Congress's power to enact laws that bear on marital rights and privileges.").
68. Windsor, 2013 U.S. LEXIS 4921, at 31-32.
69. (quoting 8 U.S.C. § 1186a(b)(1) (2006 & Supp. V 2011)).
70. (citing 42 U.S.C. § 1382c(d)(2) (2006)). The relevant provision of the Social Security Act provides: (d) In determining whether two individuals are husband and wife for purposes of this subchapter, appropriate State law shall be applied; except that-.... (2) if a man and woman are found to be holding themselves out to the community in which they reside as husband and wife, they shall be so considered for purposes of this subchapter notwithstanding any other provision of this section. 42 U.S.C. § 1382c(d)(2).
71. Windsor, 2013 U.S. LEXIS 4921, at 32
72. see also id. at 31 ("Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges.").
73. Id. at 37 ("[I]t is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance."). Judge Boudin on the First Circuit was more definitive in his rejection of the categorical family status federalism claim. In his opinion striking down section 3 of DOMA, Judge Boudin clearly stated that "neither the Tenth Amendment nor the Spending Clause invalidates DOMA." Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 11 (1st Cir. 2012).
74. Outlining Court's discussion of instances in which federal government does not defer to states' definitions of marriage.
75. Windsor, 2013 U.S. LEXIS 4921, at35
76. Id. at 37
77. see also id. at 34 ("In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition.")
78. id. at 36 ("The significance of state responsibilities for the definition and regulation of marriage dates to the Nation's beginning....").
79. Id. at 37-38 (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)).
80. (alteration in Windsor) (quoting Romer, 517 U.S. at 633).
81. Id. at 40 (describing "DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage"); see also Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 11-12 (1st Cir. 2012) (holding while Congress was not without power to act in this area, fact that federal government often defers to states with regard to marital status "reinforce[s] the need for closer than usual scrutiny" for purposes of equal protection analysis).
82. Windsor, 2013 U.S. LEXIS 4921, at42 ("The history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.").
83. Id. at42.
84. Id. at43.
85. Id. at47.
86. Id. at47-49. For a rich discussion of the equal protection and due process principles that animate the Court's decision in Windsor and how these principles relate to and inform each other
87. Douglas NeJaime, Windsor's Right to Marry, 123 Yale L.J. Online 219 (2013), http://www.yalelawjournal.org/images/pdfs/1205.pdf (on file with the Columbia Law Review).
88. 517 U.S. 620 (1996).
89. Id. at 633.
90. Id. at 624, 635-36.
91. Id. at 633 ("The absence of precedent for Amendment 2 is itself instructive; '[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.'" (alteration in Romer) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928))).
92. Windsor, 2013 U.S. LEXIS 4921, at40 (quoting Romer for proposition that "[i]n determining whether a law is motived by an improper animus or purpose, [d]iscriminations of an unusual character especially require careful consideration" (second alteration in Romer) (quoting Romer, 517 U.S. at 633) (internal quotation marks omitted)); Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 778 (2011) (noting "Romer has been read as a 'rational basis with bite' case").
93. Romer, 517 U.S. at 633.
94. Windsor, 2013 U.S. LEXIS 4921, at43 (noting "DOMA's principal effect is to identify a subset of state-sanctioned marriages" based on single trait, and then to deny spouses of these marriages over 1,000 federal rights ranging from "Social Security, housing, taxes, criminal sanctions, copyright, and veterans' benefits," writing "inequality into the entire United States Code").
95. Hasday, Family Law, supra note 19, at 874 (noting "assertions of family law's exclusive localism are typical").
96. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) ("'[T]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.'" (quoting In re Burrus, 136 U.S. 586, 593-94 (1890))); Sosna v. Iowa, 419 U.S. 393, 404 (1975) ("[D]omestic relations [is] an area that has long been regarded as a virtually exclusive province of the States.").
97. Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 253 (D. Mass. 2010) ("The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.").
98. Ian Thompson, DOMA's Defeat a Clear Victory for Same-Sex Binational Couples, Huffington Post (June 28, 2013 1:01 PM), http://www.huffingtonpost.com/ianthompson/domas-defeat-a-clear-vict_b_35 17400.html (on file with the Columbia Law Review) (noting on day Windsor decision was released, "immigration judge...put a halt to [a same-sex spouse's] scheduled deportation hearing").
99. Greenhouse, supra note 9.
100. Bonauto & Smith, supra note 9 (noting their disagreement with Linda Greenhouse's suggestion that federalism decision in Windsor would "somehow immunize from constitutional challenge those states that have chosen not to extend marriage rights to same-sex couples").
101. Thus, for example, even though it is clear that states have the power (exclusive or not) to devise the rules for entry into marriage, the Supreme Court has made clear that state marriage requirements cannot discriminate on the basis of race. Loving v. Virginia, 388 U.S. 1, 1--2 (1967) (striking down state marriage law as violative of principles of due process and equal protection).
102. Transcript of Oral Argument, supra note 37, at 95-96 (Roberts, C.J.) ("Do you think there would be a [federalism] problem if Congress went the other way...[if] Congress said, we're going to recognize same-sex couples-committed same-sex couples-even if the State doesn't, for purposes of Federal law?")
103. see also id. at 96-97 (Roberts, C.J.) ("With Congress passing a law saying, we are going to adopt a different definition of marriage than those States that don't recognize same-sex marriage. We don't care whether you do as a matter of State law, when it comes to Federal benefits, same-sex marriage will be recognized.").
104. As demonstrated in this piece, the Court did not reach this conclusion. Moreover, I demonstrate elsewhere that this claim is belied by history and practice.
105. Joslin, Family Status, supra note 16. Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 250 (D. Mass. 2010) (striking down section 3 of DOMA because it impermissibly intruded in "regulation of marital status determinations" which are "attribute[s] of state sovereignty" and are "'truly local' in character").
106. This conclusion is not necessarily true under the unusualness trigger argument, since, under that theory, what ultimately renders the statute unconstitutional is a violation of principles of equal protection. A statute intended to extend greater protection to a vulnerable group likely would not violate principles of equal protection.
107. Douglas NeJaime, Still Two Americas for Same-Sex Couples, Daily Beast (June 27, 2013, 7:45 AM), http://www.thedailybeast.com/articles/2013/06/27/still-two-americas-fors ame-sex-couples.html (on file with the Columbia Law Review) (noting many same-sex couples continue to face discrimination in states that do not support marriage equality, despite Supreme Court's decision to overturn DOMA).
108. Tara Siegel Bernard, How the Court's Ruling Will Affect Same-Sex Spouses, N.Y. Times (June 26, 2013), http://www.nytimes.com/2013/06/27/your-money/how-the-supremecourt-ruling -will-affect-same-sex-spouses.html (on file with the Columbia Law Review) (speculating which federal benefits will be extended to same-sex spouses who live in nonrecognition states).
109. ACLU et al., LGBT Organizations Fact Sheet Series: After DOMA: What It Means for You: The Supreme Court Ruling on the Defense of Marriage Act: What It Means 2 (2013),available at http://www.nclrights.org/site/DocServer/Post-DOMA_General-Overview.pdf (on file with the Columbia Law Review) (noting now that Windsor decision has gone into effect, "[s]ame-sex couples who are legally married and live in a state that respects their marriage should be eligible virtually right away for the same protections, responsibilities, and access to federal programs afforded to all other married couples").
110. Id. at 1.
111. Press Release, Williams Inst., Supreme Court Rulings Strike Down DOMA and Prevent Enforcement of California's Proposition 8 (June 26, 2013), http://williamsinstitute.law.ucla.edu/press/press-releases/supreme-court -rulings-26-jun-2013/ (on file with the Columbia Law Review) (estimating 76,000 married same-sex couples live in states that recognize their marriages and 38,000 married same-sex couples live in states that do not).
112. Mary L. Bonauto, Op-Ed., The State of Celebration, Advocate (July 2, 2013, 1:30 PM), http://www.advocate.com/commentary/2013/07/02/op-ed-state-celebration (on file with the Columbia Law Review) ("For married couples living in a 'nonrecognition' state, there will likely be a patchwork of protections available.").
113. For example, as William Baude points out, eligibility for spousal veterans' benefits and spousal Social Security benefits appear to depend on the law of the state of domicile. William Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371,1402 (2012) ("[Spousal] [v]eterans' benefits...are awarded 'according to the law of the place where the parties resided...when the right to benefits accrued.' Similarly, the Social Security Act provides that marital status determinations will be made by reference to the law of the parties' domicile." (quoting 38 U.S.C. § 103(c) (2006)) (citing 42 U.S.C. § 416(h)(1)(A)(i) (2006))).
114. Rev. Rul. 13-17, 2013-38 I.R.B. 201, 203 ("Consistent with the longstanding position expressed in Revenue Ruling 58-66, the [Internal Revenue] Service has determined to interpret the Code as incorporating a general rule, for Federal tax purposes, that recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple's place of domicile."); Same-Sex Marriages, U.S. Citizenship & Immigration Servs., http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7 543f6d1a/?vgnextoid=2543215c310af310VgnVCM100000082ca60aRCRD&vgnextc hannel=2543215c310af310VgnVCM100000082ca60aRCRD (on file with the Columbia Law Review) (last updated Nov. 26, 2013) ("As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.").
115. Benefits that likely will be denied to same-sex spouses who live in nonrecognition states include Social Security spousal benefits. See, e.g., ACLU et al., LGBT Organizations Fact Sheet Series: After DOMA: What It Means for You: Social Security Spousal and Family Protections 3 (2013),available at http://www.nclrights.org/site/DocServer/Post-DOMA_Social-Security.pdf (on file with the Columbia Law Review) (noting "[u]nder existing law, the Social Security statute uses the wage earner's 'place of domicile' as the relevant state law for assessing who is a spouse for benefits purposes").
116. Marriage Equality and Other Relationship Recognition Laws, Human Rights Campaign, http://www.hrc.org/files/assets/resources/marriage_equality_laws_072013. pdf (on file with the Columbia law Review) (last updated July 1, 2013).
117. The proposed amendment is known as the Respect for Marriage Act of 2013. Respect for Marriage Act of 2013, S. 1236, 113th Cong. (2013); Respect for Marriage Act of 2013, H.R. 2523, 113th Cong. (2013). Similar legislation was proposed in 2011. See, e.g., Lambda Legal, The Respect for Marriage Act of 2011: What Is It and What Will It Do? (2011),available at http://data.lambdalegal.org/publications/downloads/fs_the-respect-for-ma rriage-act.pdf (on file with the Columbia Law Review).
118. S. 1236 § 3; H.R. 2523 § 3.
119. 9 U.S. Dep't of State, Foreign Affairs Manual § 40.1, n.N1.1(c) (May 3, 2013) ("The underlying principle in determining the validity of the marriage is that the law of the place of marriage celebration controls (except as noted...[below]). If the law is complied with and the marriage is recognized, then the marriage is deemed to be valid for immigration purposes.").
120. Baude, supra note 96, at 1421 ("What is more, the domicile-based doctrine is consistent with the scattered statutory provisions that govern marital choice of law for veterans' and social security benefits.")
121. see also id. at 1421-22 ("To the extent there are any congressionally imposed guideposts, they point in the direction of domicile.").
122. Lynn D. Wardle, Section Three of the Defense of Marriage Act: Deciding, Democracy, and the Constitution, 58 Drake L. Rev. 951, 984 (2010) (arguing "[i]f the purpose of federalism is to respect the profound state interests of the state most interested in the regulation of domestic relationships...the test provided by [the Respect for Marriage Act]...circumvents the interests of such a state [by treating] as marriages same-sex unions that [the state] would not").
123. Bonauto, supra note 95 (noting in wake of DOMA, same-sex married couples living in nonrecognition states will continue to be denied many federal marital benefits, and urging enactment of Respect for Marriage Act, which would "establish 'certainty' by adopting a place of celebration rule").
124. Courtney G. Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, 91 B.U. L. Rev. 1669, 1697-711 (2011) (presenting analysis of and arguments against domicile-based jurisdictional rule for divorce)
125. Susan Frelich Appleton, Destination Weddings: Domicile, Public Policy, and Inequality in Family Law, 2014 Mich. St. L. Rev. (forthcoming) (on file with the Columbia Law Review) (pondering whether domicile's grip on family law matters is lessening). For a more comprehensive analysis of the role of domicile in family law matters
126. Susan Frelich Appleton, Leaving Home? Domicile, Family, and Gender, 47 U.C. Davis L. Rev. (forthcoming 2014) (on file with the Columbia Law Review).
127. For example, the Supreme Court has observed: Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of commanding problems in the field of domestic relations with which the state must deal. Thus it is plain that each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent.
128. Williams v. North Carolina (Williams I), 317 U.S. 287, 298-99 (1942).
129. Brief of Federalism Scholars, supra note 18, at 4.
130. Zeleniak, 2013 WL 3781298, at2 (B.I.A. July 17, 2013) ("The issue of the validity of a marriage under State law [for purposes of a petition for a family-based visa] is generally governed by the law of the place of celebration of the marriage." (citing Lovo-Lara, 23 I. & N. Dec. 746, 748 (B.I.A. 2005))).
131. ACLU et al., LGBT Organizations Fact Sheet Series: After DOMA: What It Means for You: Military Spousal Benefits 1 (2013),available at http://www.lambdalegal.org/sites/default/files/publications/downloads/fs_post-doma-militaryspouses-2013.pdf (on file with the Columbia Law Review) ("Generally, the military will consider a marriage valid if it was valid in the state where the marriage took place.").
132. Mike Dorf, If DOMA Falls, Will State Civil Unions Be Treated as Federal Marriages?, Dorf on Law (June 3, 2013, 7:00 AM), http://www.dorfonlaw.org/2013/06/if-doma-falls-will-statecivil-unions.ht ml (on file with the Columbia Law Review).
133. th Cong. (2013). The UAFA would extend what had previously been a marital right-the right of spousal sponsorship for immigration protections-to a "permanent partner." 113. H.R. 3050 § 2. Currently the bill limits this status to "an arrangement between 2 individuals of the same gender," id., but one could draft a similar bill that would cover different-sex unmarried couples as well in order to address the needs of all unmarried couples.
134. Among other requirements, to be in a "permanent partnership" within the meaning of the bill, the parties to the relationship must be in a "committed, intimate arrangement," "have both attained 18 years of age," be in a relationship "which has been recognized and certified as legally valid by the State of domicile of the applicant," and be "unable to contract with each other a marriage cognizable under this title."
135. Mike Dorf, The Federalism Argument that Should Have Been Made in the DOMA Case, Dorf on Law (Mar. 28, 2013, 12:55 AM), http://www.dorfonlaw.org/2013/03/thefederalism-argument-that-should.html (on file with the Columbia Law Review) ("If there is a persuasive freestanding federalism objection to DOMA, then that same objection appears to knock out [such a policy]."); see also Greenhouse, supra note 9 (arguing acceptance of categorical federalism argument "would snatch away the promise for those living [in nonrecognition states], particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party's favorite constitutional amendment, the 10th").
136. Interestingly, the Social Security Equality Act of 2013 contains a provision in it stating the following: In prescribing such regulations [to implement the legislation], the Commissioner shall take into account the laws of the State of domicile of an applicant for benefits under this title so as to ensure that such provisions, together with the other provisions of this title as applied in accordance with this subsection, are appropriately coordinated with each other and with the laws of such State. H.R. 3050, 113th Cong. § 2(a) (2013).
137. Again, this is assuming the Court had accepted the argument. As explained, the Court did not do so.
138. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941,955 (Mass. 2003) ("The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death. The department states that 'hundreds of statutes' are related to marriage and to marital benefits.").
139. In May 2004, Massachusetts became the first state in the United States to permit samesex couples to marry. Pam Belluck & Warren St. John, With Festive Mood, Gay Weddings Begin in Massachusetts, N.Y. Times (May 17, 2004), http://www.nytimes.com/2004/05/17/national/17CND-GAYS.html (on file with the Columbia Law Review).
140. Nancy D. Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law 123 (2008).
141. Ann Laquer Estin, Golden Anniversary Reflections: Changes in Marriage After Fifty Years, 42 Fam. L.Q. 333, 336 n.21 (2008).
142. Id. at 336.
143. Judith A. Seltzer, Families Formed Outside of Marriage, 62 J. Marriage & Fam. 1247, 1250 (2000).
144. Pew Research Ctr., The Decline of Marriage and Rise of New Families 2 (2010),available at http://www.pewsocialtrends.org/files/2010/11/pew-social-trends-2010-fami lies.pdf (on file with the Columbia Law Review)
145. Alicia Brokars Kelly, Navigating Gender in Modern Intimate Partnership Law, 14 J.L. & Fam. Stud. 1, 21 (2012) (noting cohabitation rates are higher "among African Americans and Hispanics than non-Hispanic Whites").
146. Nancy D. Polikoff, Law That Values All Families: Beyond (Straight and Gay) Marriage, 22 J. Am. Acad. Matrimonial Law. 85, 90 (2009).
147. S. 296, 113th Cong. (2013)
148. H.R. 519, 113th Cong. (2013).
149. The bill defines "permanent partner": (53) The term "permanent partner" means an individual 18 years of age or older who-(A) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (B) is financially interdependent with that other individual; (C) is not married to or in a permanent partnership with anyone other than that other individual; (D) is unable to contract with that other individual a marriage cognizable under this Act; and (E) is not a first-, second-, or third-degree blood relation of that other individual. H.R. 519, 113th Cong. § 2.
150. Deborah A. Widiss, Leveling Up After DOMA, 89 Ind. L.J. (forthcoming 2014) (on file with the Columbia Law Review).
151. Brief of Federalism Scholars, supra note 18, at 4.
152. As described above, it is inaccurate to describe Windsor as a federalism-based decision. See supra notes 66-78 and accompanying text.
153. H.R. 3050, 113th Cong. (2013).
154. United States v. Windsor, No. 12-307, 2013 U.S. LEXIS 4921, at 31-32 (U.S. June 26, 2013).
155. 42 U.S.C. § 1382c(d)(2) (2006) ("[I]f a man and woman are found to be holding themselves out to the community in which they reside as husband and wife, they shall so be considered for the purposes of this subchapter....").
156. In a companion piece, I demonstrate that recognizing family statuses even when they are not recognized by state law is actually not that unusual. Joslin, Family Status, supra note 16. To the contrary, many federal statutes do just that and such federal provisions are not new, but rather some have been in place for decades.
157. Windsor, 2013 U.S. LEXIS 4921, at 43.