Amicus Brief of Family Law Professors and AAML on the Merits of United States v. Windsor

51 Pages Posted: 23 Apr 2013 Last revised: 10 May 2013

See all articles by Katharine K. Baker

Katharine K. Baker

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: April 19, 2013

Abstract

This amicus brief – filed on behalf of Family Law Professors - clarifies the relationship between Congress and the states with regard to family status, particularly marital status. The brief argues that Section 3 of the Defense of Marriage Act disestablishes marital status, for all federal purposes, for one subset of married couples, in contravention of an exceedingly strong norm of federal deference to state family status determinations. Unlike any other federal statute, DOMA selectively withdraws state-conferred marital status. Regardless of whether the federal government has the power to abrogate marital status for one subset of married couples for all federal purposes, it had never, before DOMA, done so.

Part I of the brief explains why DOMA cannot be justified as an attempt to ensure federal uniformity with regard to the treatment of marriage because federal law is still silent on critical eligibility criteria for marriage. Thus, similarly situated couples in different states have always been and still are treated differently at the federal level. Moreover, Congress’ alleged need to maintain uniformity does not comport with its long history of deference to state divorce determinations (which are marital status determinations), when there was tremendous diversity between the states with regard to eligibility for divorce. Section 3’s marital restriction is also inconsistent with Congress’ ongoing deference to state determinations of other family statuses, particularly parental status. Modern technological and scientific achievements have made diversity in the state laws of parenthood far more complicated and extensive than current state disagreements over marriage for same sex couples. Yet there is no federal law of parenthood.

Part II of the brief explains how all existing federal statues pertaining to family status can be divided into three categories and all maintain the federal government’s traditional deference to state-determined family status. First, and most common, are federal statutes that implicitly invoke the state law of family status. Second, are federal statutes and regulations that explicitly invoke the state law of family status. Third, there are federal statutes and regulations that expand or restrict the category of who will be eligible for federal benefits under particular statutes based on policy reasons, particularly fraud-prevention and public fisc protection, pertinent to those specific statutes. None of those statutory definitions of marriage does what DOMA does, which is selectively withdraw marital status for one subset of marriages for all federal purposes.

Keywords: marriage, DOMA, right to marry, same-sex, lesbian, gay, family, family law, constitutional law, federalism, states, Congressional powers

JEL Classification: K10, K19, K30, K39

Suggested Citation

Baker, Katharine K., Amicus Brief of Family Law Professors and AAML on the Merits of United States v. Windsor (April 19, 2013). Chicago-Kent College of Law Research Paper No. 2013-17. Available at SSRN: https://ssrn.com/abstract=2253929

Katharine K. Baker (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States
312-906-5391 (Phone)
312-906-5280 (Fax)

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