Marriage Rules or Rhetoric? Extreme Makeover Style

So much has happened in marriage litigation and policy-making over the past few months, that an average American may be wondering if there's been an "Extreme Makeover" of sorts in family law in the United States.  State authority to regulation domestic relations, an area of law traditionally held by the states, may seem clouded and unclear in light of federal judicial intervention.  When a federal court declared unconstitutional the state of Utah's voter-approved definition of marriage, that state decided to go directly to the U.S. Supreme Court in an effort to protect its regulation of marriage.  This according to a recent account by the National Law Journal which writes:
"Kitchen v. Herbert would be the first same-sex marriage case to reach the high court since its June 2013 decision in United States v. Windsor, invalidating the definition of marriage as between a man and a woman under the federal Defense of Marriage Act.  A divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit on June 25 held that the Utah ban was unconstitutional. That ruling left the state with the option of seeking review by the full Tenth Circuit or filing a petition for review with the Supreme Court.  Utah Attorney General Sean Reyes announced on Wednesday that he would seek the high court's review. ...The Tenth Circuit was the first appellate court to rule on the constitutionality of a same-sex marriage ban. A decision by the Fourth Circuit in two challenges to Virginia's laws is expected soon. ...The justices have the option of declining to hear the Utah petition. If they do grant review, arguments likely would occur in 2015."

The need for this litigation was not unforeseen.  In our recent article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093) published by the Elon Law Review, Elizabeth Oklevitch and I suggested that the rhetoric in Windsor would lead to state challenges such as those faced by Utah, and Virginia (another state challenge we have discussed at FamilyRestoration), in "Federalism or Extreme Makeover of State Domestic Regulations Power? The Rules and Rhetoric of Windsor (and Perry)," available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093. These Supreme Court Opinions express an affirmation (at least rhetorically) of the right of states to regulate family law - yet also ruled to uphold same-sex marriage policy in one case (Windsor) while not even allowing a hearing on the voter-approved state policy upholding marriage in the other (Perry).  We suggest this incongruity in jurisprudence represents a sort of extreme makeover of state domestic regulations law.

In light of this apparent contradiction, this article considers whether "the traditional power of States to define domestic relations" is affected by the mandate that the federal government refrain from intervening in marriage entry regulation when one state's ability to define marriage was effectively denied in Perry. An overview of some collateral effects of both the rules and rhetoric of Windsor (and Perry) on state family law regulation illuminates this question. Such an overview reveals that these cases do more than simply uphold and clarify federalism; at least to some extent, they impede the ability of states to define domestic relations, with practical and ideological ramifications for family law and liberty interests. Part I provides a background on the dicta of Windsor heralding state regulation of marriage. Part II considers and examines collateral effects of Windsor (and Perry) on family law in three categories. Those categories include federal conflicts with state regulations, interstate conflicts, and family law policy. Part III discusses an ideological shift Windsor (and Perry) promote in family law and the effects of the Supreme Court's endorsement of this new ideology upon personal liberty interests and marriage regulation.  Read it at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093.

While the rules stated by the Supreme Court uphold state's rights to stabilize and restore family law policy in marriage, the rhetoric works to deconstruct state regulation of family law.  Utah is challenging that outcome, asking the High Court to reconsider it's rhetoric and rules in 2015.  Marriage rules and rhetoric greatly matter to family restoration.

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