Marriage and States’ Rights

David Frum had a good piece in NRO recently explaining why a state-by-state approach to marriage would be problematic:

1) A Massachusetts man buys a condo in Miami. He marries another Massachusetts man. The condo purchaser dies before he can write a new will. Who inherits the condo?

2) Two Massachusetts women marry. One of them becomes pregnant. The couple split up, and the woman who bore the child moves to Connecticut. The other woman sues for visitation rights. What should the Connecticut courts do?

3) A Massachusetts man is accused of stock fraud. The federal Securities and Exchange Commission subpoenas his spouse. The spouse claims marital privilege and refuses to answer the SEC̢۪s questions. May the SEC compel him to answer anyway?

4) A Massachusetts woman marries another Massachusetts woman. The relationship sours. Without obtaining a divorce, she moves to Texas and marries a man. Has she committed bigamy?


I ask these questions to drive home this point: Americans may live in states, but they conduct their financial and legal lives in a united country bound by interstate institutions.

If a couple gets married in Massachusetts and that marriage goes truly unrecognized by any entity outside the state — well then the Massachusetts wedding ceremony is just a form of words, as meaningless as the illegal weddings now being performed in San Francisco. If you’re not married outside Massachusetts, then you are not really married inside Massachusetts either.

Somehow I cannot imagine Andrew and those who think like him reconciling themselves to that outcome. I suspect that “letting the states decide†will over time gradually evolve into a demand to allow the most liberal states to impose their social values on the others through the mechanism of a million petty lawsuits on a thousand different issues.

Messy, to be sure.

Hat tip to Donald Sensing, who has a good discussion of the issue ongoing in his comments section.

Update: Matt Yglesias responded to Frum previously and his commentators provide some answers as well. I agree that some of the questions have technical resolution in existing law. But they’re not particularly satisfying answers in the context of a supposed marital relationship. As a public policy issue, having a couple 2% married is, at best, odd and certainly weakens the broader institutional concept of marriage.

Further, it strikes me that having gays 2% married is much more of a violation of the Equal Protection Clause than not allowing same sex marriage, period. Under the current situation, there’s at least nominal equality–heterosexuals aren’t allowed to marry others of their sex, either. Having mixed sex and same sex Massachussets marriages treated radically differently in the other 49 states and by the federal governmetn is essentially a separate but equal stance.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Jim Henley says:

    I knew the Republican Party was in a rut, but have we reached the point where even the basic concepts of federalism are opaque to its star commentators? (Meaning Frum.) When a liberal like Matt Yglesias ( gets a core concept of conservatism better than the NYT’s official conservative voice, one can but weep.

  2. legion says:

    Well, there are other effects to be considered… Over time (and I mean a generation or two here), people will tend to ‘vote with their feet’ if the local political climate is unpleasant to them. If I were gay and living in Cincinatti, for example, I would strongly consider moving at my earliest opportunity. It would be a difficult choice, one I would have to balance against my ties to friends and family in the local area, and how much that counted against my dignity, self-respect, and safety. It might take years to build my resume up to find a decent job in my ‘preferred location’, but that’s the price one pays. The whole point to have stae governments and state legal systems is that states are and should be different.

    The question is: is this something that needs to be uniform across the country? I know it’s morally repugnant to a lot of people, but that hasn’t forced Nevada to outlaw prostitution, nor is anyone proposing a constitutional amendment to make them.

  3. James Joyner says:

    Prostitution–or gambling, drinking, etc.–are activities that can be confined to a time and place. I’m not sure marriage is.

  4. legion says:

    Good point. I’ve never been to the Chicken Ranch (or whatever), but I’m just assuming they don’t have a ‘to go’ menu! Or a ‘doggie bag’ (ick).

    Reading these threads just confirms my other thought that this is a very bad time to deal with this issue, regardless of which side you’re on. It’s pretty apparent that this is an issue where neither side is going to get everything it “wants”, and both sides must work on what they’re each willing to accept, or even tolerate. Unfortunately, this is an election year, and there’s no such thing as a moderate position in an election year. Sigh.

  5. melvin toast says:

    Could someone explain to me who’s getting short shrift? Gay guys can marry any gay or straight girls they want. They just can’t marry gay guys. I’m straight but are my equal protection right violated if I can’t marry another guy? Is there some kind of religious gay ceremony that they are precluded from performing. Personally I found doing the paper work of getting married a pain in the ass and would have prefered not to have to do it. However it makes other paperwork much simpler. But I don’t think that’s what these people are showing up at city hall for.

    If we allow gay marriages to go forward then we should just do away with the concept that government recognizes something called marriage. All marriages should be called matings and leave it to the individual to refer to marriage how they wish. I don’t want judge telling my children that they married two men.

  6. Paul says:

    With all due respect to Yglesias’ Federalism answer the FF&C clause will smash his argument.

    Further, logistically, his answer is wholly unworkable. Frum gave 8 examples. In reality there would be 18,000 examples. So we get that many laws X 50 states.

    Only the lawyers could like that solution.