LEAVE IT TO THE STATES?: Gabriel Rosenberg

My short answer is "no", but let me explain. Before answering what I think the situation should be, it is helpful to look at what the situation is. Currently family law is a matter left to a great extent to the states. States have the power to decide who may marry, the legal process required to do so, and what the legal consequences of that marriage are within the state. In all these matters states differ from each other. The state is limited in its actions, though, to the requirement of its own constitution as well as the constitution of the United States. What those constitutions require is often a matter of great debate, but the ultimate judge is the state's highest court for matters pertaining to its own constitution, and the Supreme Court of the US for matters in the US Constitution. In either case the constitution can be amended by a process laid out therein. So, for example, the US has ruled that a state may not forbid interracial marriages, or forbid inmates from marrying (except under compelling reasons). I am not aware of any argument claiming that the US Constitution currently forbids same-sex marriage, although there are arguments that it requires it either as matter of a fundamental right to marry, or as a matter of equal protection. ...

...I do not believe the Supreme Court has explicitly addressed the issue of marriage recognition, but states have repeatedly refused to recognize marriages from sister states. ...The real grey area arises from a couple who legally resided and wed in a state where a marriage was legal, and subsequently moved to another state that had a strong policy against such marriages. This issue did come up a number of times with regards to interracial marriages with results varying from state to state. ...

That being said, there are some questions that arise about whether things should be different. For example, while marriage is currently generally left to the states, maybe this isn't such a good idea. Maybe we should have one national marriage policy to avoid the confusion that arises from 50 different policies. The same sort of argument can be made with regards to many issues besides marriage, and I generally agree. ...I think Congress should have the power to set a national policy in matters whenever it feels it is justified. That being said, this is not what the Federal Marriage Amendment (FMA) does. Instead of giving Congress a broad power to set national policy, it not only limits this to the area of marriage, nor even only to the issue of same-sex marriage, but rather it sets the policy in one direction and codifies that policy in the constitution. It does not give Congress the power to set national policy, but sets it for Congress. And even then we would still have the problems of certain marriages being legal in one state and illegal in another state.

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posted by Eve at 4:16 PM | link

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