Equality Federalism: A Solution to the Marriage Wars
87 Pages Posted: 12 Jun 2012 Last revised: 23 Feb 2013
Date Written: June 11, 2012
This article argues that the Supreme Court lacks an institutional capacity to adjudicate the meaning of marriage. The Court has no theory of marriage as an entity and no experience in family law's supervision of marriage logic. By contrast, the Supreme Court has deep institutional competence as a referee of federalism, with a mission to assure that federalism, vertical and horizontal, is disciplined by critical constitutional values. Today, the state policy interests in denying recognition to same-sex marriages, either those brought into the state by couples who married in their state of residence before relocating, or ones entered into by a state's residents through travel to another state, are vanishingly thin. They subject contemporary same-sex marriages to an absolute, wholly abstract claim derived from an archaic context unsuited to the wide acceptance of marriage equality in the United States.
The request in Hollingsworth v. Perry for the Court to mandate that all states authorize same-sex marriage presses the Court to range beyond its basic strength into state family law. The justices should express openness to future litigation that calls upon the court to require all states to recognize same-sex marriages that have been solemnized by a competent jurisdiction in accordance with its procedures for marriage ceremony. The Court cannot with coherence designate marriage as a fundamental right, in the absence of a clear entity theory. It can, however, require rational, fair, equal treatment of a widespread marital status.
Keywords: equal protection clause, equality, same-sex marriage, federalism, public policy, DOMA, state court judges, gender, change, evasive marriage, migratory marriage, void marriage, state interest, extra-territorial, Full Faith and Credit, levels of scrutiny, Perry v. Brown, Loving v. Vir
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