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What Happens to Straight People

Before I get to the last phase of my stint here, I thought it would be helpful for me to address one recurring theme in the comments. John D’s comment this morning is representative: “how are...

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A Common-Law Solution

So I’ve explained why I reject two of the three possible approaches that federal courts take to the marital choice of law problem. The one that’s left over is the so-called federal common law approach,...

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Congress

Amidst all of my many posts about what federal courts should do if DOMA is struck down, I thought I should say a little bit about Congress. First — and this may be obvious to some readers but perhaps...

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Interstitial Law

Before I go, I wanted to leave you with a few thoughts about these legal issues that go beyond the issue of DOMA and same-sex marriage. As you may have gleaned, it turns out that marriage isn’t the...

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District Court Judge Holds that DOMA is Unconstitutional as to Federal Law

The opinion is today’s Golinski v. United States Office of Personnel Mgmt. (N.D. Cal. Feb. 22, 2012). The conclusion: “In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates...

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First Circuit Unanimously Strikes Down DOMA Section 3

The opinion is here.  The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court...

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The Second Circuit’s DOMA Decision

At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional.  The post...

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“The Most Significant Cases These Nine Justices Have Ever Considered”

Tom Goldstein at SCOTUSBlog presents the matter succinctly: At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These...

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Congress Has Power To Define The Terms Of Its Own Statutes

Last week, Dale Carpenter blogged about a particular amicus brief filed in U.S. v. Windsor, the Defense of Marriage Act (DOMA) case. In this brief, Dale, as well as co-conspirators Jonathan Adler,...

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Debating DOMA and Federalism

As Dale noted here, several VC contributors joined a federalism scholars amicus brief in United States v. Windsor arguing that Section 3 of the Defense of Marriage Act transgresses the limitations on...

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Some questions on the DOMA federalism theory

I’m also one of those who are skeptical of the federalism brief against DOMA. But I have a few questions, based on perusing the recent posts here and elsewhere by Dale, Randy, Jonathan, Nick, and my...

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McConnell on the Same-Sex Marriage Cases

In Friday’s WSJ, Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the Supreme Court should hold that Proposition 8 supporters...

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Whelan v. McConnell on Same-Sex Marriage

On Thursday, Stanford law professor and former federal appellate judge Michael McConnell suggested the Supreme Court should avoid ruling directly on the constitutionality of same-sex marriage by...

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There Is No Federalism Objection To Section Three of the Defense of Marriage Act

There has been a lot of commentary about the federalism argument against the Defense of Marriage Act (DOMA). Several of my co-conspirators signed on to the “federalism brief” in the DOMA case. I...

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Can Statutory Definitions Be Unconstitutional on Federalism Grounds?

In his latest post on the federalism argument against DOMA, my co-blogger Nick Rosenkranz suggests that there can be no federalism-based constitutional objection to a statute that “defines [a word]...

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Why Does Federalism Matter in an Equal Protection Case?

The question presented in United States v. Windsor is whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection. Why, then, are some of us...

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The Wall Street Journal Editorial Page Rejects The Federalism Argument...

The Wall Street Journal editorial page — always a steadfast friend of federalism — is nevertheless unconvinced by the “federalism brief” in the Defense of Marriage Act (DOMA) case. The editors write:...

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Epstein on the Gay Marriage Cases

Richard Epstein has two recent pieces discussing the Hollingsworth and Windsor cases.  One for Hoover’s Defining Ideas, the other for Ricochet.  In these pieces he notes some of his doubts about the...

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The “Pretext” Argument Against Section Three of the Defense of Marriage Act

In his most recent post, Randy responds to my critique (here and here) of the DOMA “federalism brief.” He begins by conceding: “In most every conceivable case, there is no objection to any particular...

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Why Striking Down DOMA on Federalism Grounds Would not Lead to “Litigation...

In a recent op ed, Harvard Law Professor Noah Feldman argues that striking down the Defense of Marriage Act on federalism grounds – as advocated in an amicus brief I signed along with several other...

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Can the Federal Government Define “Property” For Purposes of Federal Law? – A...

In a post below, Orin notes that many federal statutes define the meaning of the term “property,” even though property is generally defined under state law.  If this is so, Orin understandably wonders,...

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Commentary on DOMA and Federalism

Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention.  Here’s a brief round-up of some...

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The Exact Same Word May Mean Different Things For Purposes of State Law and...

Section 3 of the Defense of Marriage Act (DOMA) defines the word “marriage” for purposes of federal law. In a recent post, Randy argues that this provision must be unconstitutional, because otherwise...

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DOMA and Definitions – A Final Comment

In his last post on the subject, Nick Rosenkranz concludes that “the mere fact of a federal definition, for purposes of federal law, does not violate principles of federalism.” On this we are entirely...

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Linda Greenhouse’s Misrepresentation of the Federalism Argument Against DOMA

In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief...

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DOMA Goes Down

In a 5-4 opinion, authored by Justice Kennedy, the Supreme Court declares Section 3 of DOMA unconstitutional. It’s an Equal Protection holding, informed by federalism principles. Here is how Justice...

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The DOMA Decision and Federalism

Justice Anthony Kennedy’s majority opinion for the Court in the DOMA case relies partly on federalism considerations, striking down Section 3 of DOMA in part because it goes beyond the usual scope of...

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The Impact of Today’s Gay Marriage Decisions

It may be a long time before the effects of today’s gay marriage decisions are fully evident. But it seems clear that they represent important progress for same-sex marriage and gay rights more...

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Right, Left, and the Standing Issues in the Gay Marriage Cases

Both of today’s gay marriage cases raised complex issues of whether the parties had “standing” to appear in federal court. In the Windsor case striking down Section 3 of DOMA, the Obama...

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Did the Obama Administration have a Duty to Defend DOMA?

I have a somewhat different perspective than co-blogger Todd Zywicki on the Obama administration’s decision not to defend DOMA in court. In my view, the President’s duty to uphold the Constitution...

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Federal Court Orders Interstate Recognition of Same-Sex Marriage

As readers of the VC all surely know, the Supreme Court’s decision last month in Windsor struck down Section 3 of DOMA, which restricts the recognition of marriage for purposes of federal statutes. One...

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Cozen O’Connor v. Tobits: A Questionable Resolution of Some Complicated...

Thanks to the ever-alert Chris Geidner, I saw this post-DOMA decision by a federal district court in Pennsylvania, which is a good example of how complicated the post-DOMA choice-of-law problems can be...

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Civil Unions and Federal Law

A commenter to my last DOMA/choice-of-law post asks– why not just have federal law recognize all state-law civil unions? Why insist that a legal union be labeled “marriage” to count federally as a...

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Social Security Administration Takes Different View of Marital Choice of Law

Chris Geidner (my go-to source these days for post-DOMA legal developments) reports that the Social Security Administration has now developed policies for paying benefits to couples in same-sex...

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Duquesne Federalist Society

Tomorrow I’ll be discussing the Court’s decision in United States v. Windsor with Professor Lynn Wardle of BYU Law School.   We’ll be there at the invitation of the Duquesne University Law School...

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