The Converging Logic of Federalism and Equality in Same-Sex Marriage Recognition

Abstract

Federalism is a powerful engine of change, permitting experimentation by states, thus spreading innovation and allowing local normative input into local institutions. But federalism is also a part of the glue binding the nation into one whole, with states respectful of legal statuses created in other states. State “sovereignty” allows states to create experiments with which other states may not interfere. The Supreme Court interprets and serves as a correcting force for state regulations and laws that impose an extra-territorial effect on the laws of other states. Such a process allows experimentation and protects the cohesiveness of a unified nation, in which citizens in a mobile society may be assured of consistent expectations without regard to differences among the states about policy choices.

Federalism has emerged as a testing ground for determining what role equality principles will play in deciding the marriage rights of same-sex couples and in encouraging the movement toward the acceptance of same-sex marriage. Recent federal court decisions underline the adaptive capacity of federalism: lower federal courts have carved out new protections for same-sex marriages from adverse treatment under federal law and the Ninth Circuit has developed a fact-intensive approach specifically rejecting California’s withdrawal of marriage terminology from provisions in California law yet retaining all the rights of marriage for same-sex couples. In contexts limited to the form and effect of specific denials of legal status to marriages, analysis under the Equal Protection Clause plays a role in paring back on adverse treatments of same-sex marriage. More states have changed their marriage laws to authorize same-sex marriage. There is, thus, a basis for optimism about the benefits – measured enhancement of equality and softening of conflict which a federalist path to gradual social change can provide. But the extent to which federalism and equality do and will serve as accelerators of change is unclear, as is the probable pace of change. There is still no clear command for states to respect the marital status created by other states for same-sex couples. Federalism as national glue is playing a weak role in family law. More of the energy federalism releases could be harnessed to direct state judicial attention, in the evolving context of same-sex marriage, to the gendered rules of marriage and to support stable expectations for married couples.

Without equality in a full partner role, federalism does not energize marriage law or encourage responsiveness to changing patterns of living. It can slight civility. More modestly, federalist tools, supplemented by equality analysis, help judges construct methods to check some adverse treatment of same-sex marriage rights. The recent federal court cases using such tools illustrate the potential as well as the limitations of federalism when not partnered with principles of equality. These cases provide a glimpse at how a fusion of equality and federalism could become a powerful force for respecting and strengthening both values. The potential of federalism in a deep partnership with equality is the subject of this Issue Brief.

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