How can marriage be a states-right?
February 12, 2014 1:33 PM   Subscribe

In light of the recent court decision that Kentucky must honor gay marriages performed in other states, I've been wondering how marriage can be granted and controlled by the states, as opposed to the federal government?

And, why didn't something along these lines pop up when interracial marriages were a big deal?

I'm really not interested in a big discussion about whether same-sex marriage should or shouldn't be legal. I'm interested in the seeming contradiction of a state granting a privilege(right?) that comes along with lots of federal rights/benefits.
posted by specialnobodie to Law & Government (11 answers total) 1 user marked this as a favorite
So IANAL, but what I think we're dealing with here is ultimately a conflict between the 10th and 14th amendments. The 10th says that any rights not in the Constitution (like determining who can get married) belongs to the states. The 14th gives equal protection under the law to all individuals. So judges are trying to determine whether marriage is a right that falls under equal protection.

Given that this is exactly what they *did* rule in interracial marriage decisions (see Loving v Virginia), it seems pretty likely that the courts will eventually rule similarly for gay marriage.
posted by tau_ceti at 1:39 PM on February 12, 2014 [4 favorites]

The following is a description of the law and is not a statement for or against any policy made by the US government.

I've been wondering how marriage can be granted and controlled by the states, as opposed to the federal government?

The federal constitution of the United States is just that - a federal constitution. The default "owner" of any particular government role is not the federal government, it is the states. That's the purpose of the Tenth Amendment - in short, if it's not in the Constitution as an enumerated role for the federal government, the states have control over that. Since marriage is not an enumerated federal role in the Constitution, there is at least a question of whether or not the federal government has any role in regulating marriage. There are many arguments that marriage does/does not fall under the auspices of other enumerated roles in the Constitution, which is why marriage is a contentious topic in the courts.

The Supreme Court has rather liberally applied various clauses of the Constitituion to allow the federal government increased control over wide areas of our society (see Lopez v. US and Wickard v. Filburn), but it has not yet determined that marriage is in the realm of federal government oversight. The Supreme Court has ruled that states are limited in how they regulate marriage (for instance, states cannot prohibit interracial marriage), but the Supreme Court has not yet ruled states are unable to prevent same-sex couples from marrying.
posted by saeculorum at 1:46 PM on February 12, 2014 [5 favorites]

I think that the answer may also partially liein in Article IV, section 1 of the Constitution. The Full Faith and Credit Clause.

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

If A&B are married in the State of Bliss, then there will be a public record saying that A&B are married.. The Commonwealth of Despair can't really claim that the marriage doesn't exist, because they must give faith and credit to Bliss's records.

I think.
posted by sparklemotion at 1:50 PM on February 12, 2014 [4 favorites]

The federal government is only allowed to do what the Constitution specifically says the federal government is allowed to do. Everything else, and that's most things, are run by the states. The Constitution sometimes limits what the states can and cannot do, but the actual act of marriage is still handled at the state level, even if the US Supreme Court has made a ruling on it.
posted by Sequence at 1:55 PM on February 12, 2014

I think that the answer may also partially liein in Article IV, section 1 of the Constitution. The Full Faith and Credit Clause.

sparklemotion's post is an oversimplification of the Full Faith and Credit clause, which is more related to judicial decisions and judgments. This is a particularly good (albeit lengthy) article on the subject. States are not required to universally accept any decisions other states make. For instance, concealed carry permits are not always recognized between states (even though it deals with a constitutional right).

DOMA was not actually overturned under the Full Faith and Credit Clause (although it has been challenged under the clause). Instead, it was overturned as part of the Fifth Amendment. There have been cases where the Full Faith and Credit clause has been interpreted in quite a limited fashion with respect to marriage, for instance, Adar v. Smith held that Louisiana does not need to list both fathers of a jointly adopted child on the child's birth certificate even though the child was adopted in New York (when New York recognizes both parents).
posted by saeculorum at 2:06 PM on February 12, 2014

Here's the short answer. After the American revolution, just about all governmental powers rested with the states. The states were viewed as independent sovereignties who had chosen to come together in a loose confederation.

Although adoption of the U.S. constitution (which had to be ratified by a super majority of the states) in 1789 gave the federal government a lot more power, the federal government remains, under the constitution, a government of limited powers. The point of the 10th amendment of the bill of rights was to reinforce that all powers not expressly granted to the federal government were reserved to the states.

Today, the states still are sovereign in areas like family law legislation. Moreover, the state constitutions can still grant state citizens more rights (like privacy/search and seizure) than they have as U.S. citizens.

The major problem with state action forbidding gay marriage is that it appears the U.S. Supreme Court, which is the final word on the U.S. constitution, is just about ready to say that doing so infringes the right of U.S. citizens to equal protection under the law. It is when state legislation, even in an area of traditional state sovereignty, infringes on the rights of a U.S. citizen, that such legislation becomes unconstitutional.
posted by bearwife at 2:17 PM on February 12, 2014

Also, since you asked about interracial marriage, the problem with "anti-miscegenation" laws forbidding interracial marriage was not the fact that states regulate marriage and other family law topics, but that such laws violated the equal protection and due process rights guaranteed to U.S. citizens under the 14th amendment. That's the gist of the U.S. Supreme Court decision in Loving v. Virginia.
posted by bearwife at 2:21 PM on February 12, 2014 [1 favorite]

[Comment removed. Folks, please don't get into a general discussion about your feelings about Congress, etc. in here.]
posted by cortex (staff) at 2:34 PM on February 12, 2014

the federal government is a government of enumerated powers, which means that if the particular power isn't cited in article 1, section 8 of the constitution, it doesn't exist.*

the remaining powers, including the broad catch-all "police power", are reserved to the states.

*the expansionist reading of the commerce clause ever since wickard v. filburn effectively means that there are no longer any limits on federal power.
posted by bruce at 2:34 PM on February 12, 2014

There are some great answers here, but I think a bit of historical context about how the federal government got involved in marriage at all is relevant. Unsurprisingly, it started with taxes. In the 1920s and 30s, during the earliest days of the income tax, many people used their marriages to avoid taxation. By and large, married couples only had one earner, usually the man. He would attribute half his income to his wife, and thus reduce his marginal tax rate.

Some states allowed this allocation because their marriage law provided for community property. Community property means that a married couple shares ownership of all their possessions. That stands in contrast to common law property states, where each partner owns what they earn and bring in to the marriage. Under common law marriage, there is no way to allocate income to the lower-earning partner and thus no way to avoid the income tax. Common law was the norm in older eastern states while California and some western states adopted the community property regime. After the income tax came into play, many more states adopted the community property regime to enable their citizens to reduce their federal tax burden. In response, in order to standardize the tax regime in every state, the IRS introduced the joint-filing regime we are all now familiar with.

Fast forward to DOMA, and what you have is the federal government choosing to respect the state definition of marriage insofar as it does not include same-sex marriages, which as others here have discussed was overturned under the Fifth Amendment. So herein lies the catch: state law determines whether someone is married, but it is significant for federal tax (and other) purposes and so must be recognized by and to some extent controlled by federal law.

As everyone else has pointed out, the federal government's powers do not seem to include anything that would allow Congress to define marriage. However, you have a significant set of federal laws that are affected by the definition of marriage. The tension between those two issues is where all the trouble comes from, and the trouble in turn may provide a constitutional basis for regulating marriage at a federal level.

Generally there have not been huge disparities in how states define marriage until the controversy over same-sex marriage. We could theoretically continue under the same regime with no problems at all until some state alters marriage in a way that drastically departs from society's norms. For example if Utah legalized polygamy, which could provide some very interesting techniques for tax avoidance (e.g. if I entered into a sham marriage with a number of high-earning, single women for the sake of reducing our collective tax burden). Or if some crazy state legalizes human-operating system marriage once we develop sufficiently advanced AI.

Basically, so long as the states generally treat marriage pretty much the same way, there's no need for the federal government to get involved, nor is there a constitutional basis. If too much variation arises, it could spell trouble for some federal laws, which in turn could provide a constitutional basis for a federal law on marriage. The Necessary and Proper Clause, Commerce Clause, and Sixteenth Amendment (creating the income tax) could arguably provide a basis for federal regulation of marriage to the extent necessary to reconcile drastically different state marriage regimes. However, any such law would almost certainly have to be restricted to defining marriage only for federal purposes, as DOMA did. And it would have to have a very compelling justification. Same-sex marriage is probably not compelling enough of a disparity considering that it is still between two human individuals and does not drastically undermine the tax regime.

So a federal definition of marriage probably is not going to happen, but it's not impossible.
posted by NapAdvocacy at 4:39 PM on February 12, 2014 [1 favorite]

One of the tidbits I had to learn for the bar exam had to do with the history of blood test requirements for marriage licenses around the WWI era, which generally were to find out if someone had syphilis, in which case the marriage license could not be issued. State B requires a blood taste; State N does not. If Cora and Dean wanted to get married but Dean had syphilis and they lived in State B, they would not be able to get the license issued. If they went to State N, got married, and came back to State B, State B would not be required to recognize their marriage because they went to State N specifically to circumvent the laws of State B that were enacted to promote the public health and welfare.

If, however, Cora and Dean lived in State N, got married, and then moved to State B, State B would be required to recognize the marriage under the "Full Faith and Credit" requirements of the Constitution, as Cora and Dean had complied with the law in their state of residence at the time they got married and had not in bad faith attempted to circumvent any rules.

(Popular law school question: if Cora and Dean live in State B, do not know of the blood test requirement, and get married in State N not to dodge the blood test but to take advantage of the beautiful State N skyline at a popular State N venue for weddings, then return to their residence in State B, should State B be required to recognize their marriage under the Full Faith and Credit Clause?)

Other full faith and credit issues around marriage (besides interracial and gay marriage) included degree of consanguinity (cousin marriage), age allowed to marry with and without parental consent, waiting periods, and some others I'm not immediately thinking of. So to get married (or divorced) without triggering questions of dodging state law in bad faith, you basically had to be resident within your "target" state for a certain period of time (typically set by state law).

Among the consequences of that, you had the basis for the "quickie" marriage in Las Vegas, where there would be no residency requirement or waiting period, and similarly the 6-week Nevada divorce (aka "getting Reno-vated") which allowed women (mostly) to take advantage of their very relaxed divorce laws after just a six-week residency in the state.

Some of the issues around how "full faith and credit" works when states have differing marriage requirements are a little easier to understand when you start to add in the context of all these different issues instead of just interracial marriage.
posted by Eyebrows McGee at 4:48 PM on February 12, 2014

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