Monday, April 8, 2013

Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage

In her column in the NYT last week, Linda Greenhouse wonders whether the federalism argument in the challenge to DOMA in United States v. Windsor is a "Trojan horse." 

Greenhouse has this reminder about federalism and family law:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

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Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.

RR
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Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink

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Comments

Yet another wonderful Greenhouse column.

Conservatives who push the federalism argument are leaving out half of what federalism means. It's not just a system that divides power between federal and state governments. The Constitution also limits the ability of states to undermine other states in matters that affect national unity and citizenship, and the stability of a marriage as people move across our country should be one of those instances. This horizontal aspect of federalism, which regulates how states treat one another, is nothing new. It's an important theme of our existing constitutional law of commerce, full faith and credit, and privileges and immunities.

If we're going to rest on federalism as a basis for leaving marriage equality to the states, then states must take the whole federalism package. First, they must extend reciprocity to marriages lawfully conducted in other states when people change residence. Second, they cannot insert themselves between citizens and their federal government by claiming that legally married couples must lose federal benefits as the price of moving to an anti-equality state. During the Windsor oral arguments, justices and lawyers seemed to assume states would have this power. No one blinked, even when Justice Alito callously suggested states could bar spousal visits to wounded soldiers.

A law professor, former Air Force officer, and author of "A More Perfect Military: How the Constitution Can Make Our Military Stronger"

Posted by: DH Mazur | Apr 8, 2013 1:07:38 PM

Conservatives who push the federalism argument are leaving out half of what federalism means. It's not just a system that divides power between federal and state governments. The Constitution also limits the ability of states to undermine other states in matters that affect national unity and citizenship, and the stability of a marriage as people move across our country should be one of those instances. This horizontal aspect of federalism, which regulates how states treat one another, is nothing new. It's a important theme of our existing constitutional law of commerce, full faith and credit, and privileges and immunities.

If we're going to rest on federalism as a basis for leaving marriage equality to the states, then states must take the whole federalism package. First, they must extend reciprocity to marriages lawfully conducted in other states when people change residence. Second, they cannot insert themselves between citizens and their federal government by claiming that legally married couples must lose federal benefits as the price of moving to an anti-equality state. During the Windsor arguments, justices and lawyers seemed to assume states would have this power. No one blinked, even when Justice Alito callously suggested states could bar spousal visits to wounded soldiers.

A law professor, former Air Force officer, and author of "A More Perfect Military: How the Constitution Can Make Our Military Stronger"

Posted by: DH Mazur | Apr 8, 2013 1:23:15 PM

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