The Perils of Family Law Localism
33 Pages Posted: 10 Jan 2015 Last revised: 29 May 2015
Date Written: 2014
The notion that family law is inherently a matter for the states, not the federal government, has been invoked frequently in recent decades. The argument proved to be rhetorically, if not legally, powerful in the litigation challenging Section 3 of the Defense of Marriage Act. Section 3, some argued, was an impermissible federal intrusion into an area of law reserved exclusively to the States.
This Article builds upon the literature examining family law localism by considering how the narrative affects the doctrine of family law. First, I consider how the narrative of family law localism facilitates greater reliance on morality in the area of family law. Second, I examine how it serves to justify application of a more deferential form of review in family law cases. In so doing, this Article contributes to the ongoing conversation about “family law exceptionalism.”
Keywords: family law, family law exceptionalism, lesbian, gay, Section 3, federalism, localism, morality, deference, equal protection
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