This common embrace of the truth about marriage persisted at least up to World War II.That world has passed away.

The State Marriage Defense Act

by Gerard V. Bradley

The age in which all states were united in understanding marriage as the exclusive union of man and woman for life has passed away. Now, new legislation seeks to protect the right of each state to define marriage for those who reside within its borders.

In its Windsor decision last June, the Supreme Court identified an unconstitutional burden upon federalism, namely, “two contradictory marriage regimes within the same state.” The “contradiction” arose at the intersection of the federal Defense of Marriage Act (DOMA), which defined “marriage” as the union of man and woman, and some states’ exercise of their “historic and essential authority to define the marital relation” (the Court’s phrase) to include same-sex couples. At ground level, Edith Windsor was considered “married” to her late lesbian partner under New York law, but was unmarried for federal estate tax purposes.

The Court solved this apparent problem by requiring the federal government to “defer to state-law policy decisions with respect to domestic relations.” So, since Windsor was deemed to be a surviving “spouse” under New York law, she was deemed to be a surviving “spouse” under federal tax law, too. The central declared goal of Windsor was just this vertical uniformity: a legally married New York resident is married for all local, state, and federal government purposes.

But the Court’s solution raised an obvious question, one that the Justices ignored entirely: which state? What if Edith Windsor and her New York “spouse” had moved to the Poconos? Or to Palm Beach? Or to any one of the thirty-two states where marriage is rightly defined as the union of man and woman? The obvious question is whether the federal government must “defer” to the laws of a couples’ resident state—their “domicile”—or to the laws of the state where their marriage was celebrated. (Windsor and her partner were originally "married" in Canada, and New York law chose to treat them as such even before the state permitted same-sex marriage locally. 

The Court's decision of the case nonetheless raises the question just asked.)
It is surely accurate to say that Windsor created a vacuum when it threw out Section 3 of DOMA, which stipulated that the term “marriage” in all federal laws referred to the union of a man and a woman. But we can now say more perspicuously that Windsor created an acute choice-of-law question. Do the laws of the state of domicile or celebration prevail? Congress has done nothing to answer this conspicuous question.

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