Tuesday, July 2, 2013
In Windsor v. United States, the Supreme Court spent a considerable portion of its opinion emphasizing the limits of the federal government’s ability to define and regulate marriage. As the Court noted, “[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.” (14)
At the same time, the Supreme Court acknowledged that, in some instances, Congress may enact laws that “bear on marital rights and privileges.” (14-15). The Court then provided an example of valid federal laws that interact with state domestic relations law: immigration law. In particular, the Court cited 8 U.S.C. 1186a(b)(1), which is the provision of the Immigration and Nationality Act that terminates a noncitizen’s conditional residency status because the underlying marriage upon which the status was obtained is fraudulent.
In highlighting this example (as well as another example—common-law marriages would be recognized for spousal Social Security benefits), the Supreme Court expressed that these federal laws are constitutional because they promote federal goals. Specifically, the Court stated, “[T]hese discrete examples establish the constitutionality of limited federal laws that regulate the meaning of marriage n order to further federal policy.” (15)
The majority’s acknowledgement of the validity of (limited) federal regulation of marriage in Windsor is worth exploring for at least two reasons. First, the Court’s discussion of federal regulation of marriage is incomplete because, as history has shown, the extent of federal regulation is far more expansive than the Court recognized in Windsor. Second, the Court does not state the ways in which the Constitution may limit the federal regulation of marriage when the federal government does so to further “federal policy.”
In this post, I will focus on the ways in which the federal government regulated (and indeed restricted) marriage historically. (I will tackle the issue of the limits of federal regulation of marriage for the purpose of promoting federal policies in a separate post).
For years after World War II, the federal government—vis-à-vis the armed forces—restricted the ability of American soldiers to marry Japanese national women. (I wrote about such federal regulation of marriage in this article; Nancy Ota has also written about this area - see here and here). To be sure, the regulation of marriage was not explicit. It took a number of laws—immigration, citizenship and military regulations—to do restrict marriages. Specifically, because Japanese women were not admissible to the U.S. under immigration law because they were not eligible to become U.S. citizens, military officials denied the soldiers’ applications to marry their Japanese fiancées. Yet, the purpose and outcome was the same: to prevent American soldiers (mainly Whites) from marrying Japanese women.
Such federal regulation and restriction of marriage was not limited to Japan. It also took place in Europe, particularly with respect to marriages between African American male soldiers and White European women. During and after World War II, Black soldiers sent numerous letters to the NAACP to complain about the extent to which military officials denied their applications to marry their White fiancées. The purpose of the federal restriction of interracial marriages in Europe differed from those mixed-race relationships in Japan. Specifically, the federal government restricted these marriages because they were against federal policy. (See picture below for an example of a marriage application, filed by an African American soldier to marry his White fiancee, that was denied by his superiors).
Thus, as the foregoing explained, the federal government has played a bigger role in the regulation and restriction of marriage and family formation far more than the Supreme Court acknowledged in Windsor. Recognizing this larger participation in the regulation marriage is important not only for correcting our collective historical understanding of how marriages are regulated in the U.S. but also so that we can address questions focusing on the boundaries of such federal regulation of marriage. What were the legal grounds for the military’s regulation of marriage in both Japan and Europe? Critically, what federal policies were being furthered such that marriages had to be restricted, especially in ways that curbed interracial marriages? I will address these questions (and others) sometime later. For now, my hope is to highlight the importance of gaps (widened in my view by Windsor) in our historical understanding of marriage regulation.