Legal Commentary

Benkof has a strange idea of how federalism works. He proposes an agreement that ?no state will implement same-sex marriage until it is passed at the federal level, or until states representing at least 50 percent of the population (instead of the present 14 percent) decide to implement same-sex marriage, at which point all states will recognize same-sex marriage.? Who would make this agreement? How would it be coordinated? It?s not even clear that same-sex marriage could be ?passed at the federal level,? since states traditionally have had exclusive authority over family law.

He seems to think that it?s intolerable that any state have a different law on any important question than any other state, because then hard choice of law questions will arise. But choice of law problems are inevitable so long as the planet is divided up among different jurisdictions. They also are not new. There are clear answers to these problems. The sky is not falling.

He asks me whether I think Dred Scott is rightly decided. He?s a bit muddled about the issues in this case, which were not all choice of law issues (his quotation from the case doesn?t speak to that issue, but to the very different one of whether African-Americans can be citizens of the United States), but his real concern is whether free states had an obligation to recognize slavery. I talk about that question a bit in my book, Same Sex, Different States, pp. 69-81. The bottom line is that we?re not willing to apply choice of law analysis here, because we can?t tolerate federalism with respect to slavery. The Southern states were not entitled to be slave states. The institution of slavery had to be destroyed, by military means if necessary. However, almost nobody thinks that this is true of same-sex marriage. Even the most vigorous opponents of same-sex marriage have not proposed that we invade Canada to end the institution there.

Most choice of law issues are not as fraught as slavery. If Benkof thinks that the same-sex marriage issue is one of the extraordinary ones, in which states should absolutely refuse to cooperate with one another and make themselves havens for people trying to escape their obligations to their families, he should try to make that case, and then I?ll be glad to respond to it. But he needs to take responsibility for the nasty implications of what he is saying. Can someone married in Los Angeles safely run away to Chicago with the family?s assets? And what happens when someone from California is unexpectedly hospitalized in Illinois, and the hospital needs to know who is legally authorized to make the patient?s medical decisions? What omelet is so wonderful that it is worth breaking these particular eggs?

Full post as published by Balkinization on June 09, 2008 (boomark / email).