Commentary Magazine

The Federal Role in the Family

To the Editor:

While I am sympathetic to Tara Helfman’s argument against enforced conformity to national standards where states’ discretion has previously reigned, I judge it to be misplaced and wildly overstated in the matter of United States v. Windsor [“Gay Marriage, the Court, and Federalism,” May].

There are two separate reasons for my position: one narrowly legal, and the other more broad. The narrower simply turns on the notion that a given social or legal status may have one set of implications and consequences for federal law and an entirely different set of implications and consequences for state law, and therefore it is fitting and right that each goes its own way without offending the other. Let me illustrate this with an analogy to a less contentious emerging body of law: posthumous conception.

With the ability to store sperm for long periods of time after the death of the provider, when a child is conceived using that sperm, what is the legal status of the child in relation to the provider of the sperm? The states’ legislatures and courts may ask this question in order to determine under what circumstances the child may inherit from the estate of the “father.” That is rightly a matter of state law. On the other hand, there is the question of eligibility for Social Security survivor benefits—federal law. Until now—because this particular form of insemination is of only recent vintage—the federal law piggybacked on state law. That is, if a child could inherit from the father under the particular state law, she would be eligible to receive Social Security benefits under federal law—and if not, then not. But now there is something of a consensus among commentators to de-couple these standards, for what should be obvious reasons.

First, the current practice leads to interstate inequity; a child born in one state would not receive Social Security benefits while a child born under identical circumstances in another state would receive such benefits. Second, the optimal rules of inheritance are driven by different policy considerations than the criteria for dispensing Social Security benefits. The former must be principally concerned with the timely settling of the descendent’s estate, an issue of no import in the doling out of Social Security benefits. It would not be considered an offense to the principle of federalism for Congress to set rules different from those of the states with regard to how parentage determines one’s eligibility for Social Security survivor benefits.

As with the case of posthumous conception, there is a strong argument in favor of de-coupling in order to achieve interstate equity. To have the federal-estate tax marital exemption apply to same-sex unions that are legal marriages would mean that those in long-term same-sex relationships like Ms. Windsor, in most states where such marriages are not recognized, would be treated differently than the plaintiff in this case and be without legal remedy. As with posthumous conception, there seems to be much virtue in likes being treated alike in their relation to the federal government.

The broader reason for rejecting the federalism argument is that there is entirely too much unserious talk about the deference that the federal government should give to state definitions of marriage. It is true that the precise contours of the definition of marriage are left to the states. But this is not deference without limits. If there should be advantages to doing so (tax or otherwise), could a state permit a man to marry his motorcycle? But we need not retreat to this absurdity. There is some shared historical understanding of the broad contours of marriage, such that some things simply cannot fall within it. This is different than the notion that some possible marriages will not be permitted— polygamous marriage, child marriages, or in the past, mixed-race marriages. In those cases there is (or was) a shared understanding that such marriages are not an offense to reason and logic. Instead, they have been viewed as improper, immoral, or otherwise to be prohibited by various state legislative bodies. That is not the objection to same-sex marriage. The objection to same-sex marriage for most who share it is not far removed from the objection to marrying one’s motorcycle. It simply isn’t thinkable.

Lloyd Cohen
Professor of Law
George Mason University

Tara Helfman writes:

Professor Cohen’s letter cuts to the heart of two important issues in the gay-marriage debate: whether the federal government has the power to preempt state definitions of marriage and, if not, whether it ought to. It is true that harmonizing state and federal definitions of family relationships may eliminate confusion by promoting uniformity. That has, in a way, been the argument of gay-rights activists all along: treating married people the same way under state and federal law promotes equality under the law. But federalizing the matter does not resolve the underlying question: Whose definition of marriage should the federal government apply?

Virtually the entire history of federal case law recognizes that, barring a Fourteenth Amendment violation, the states have the power to define familial relations because state governments are most representative of the values of the political community to which families belong. And while, as Professor Cohen notes, many commentators believe that federal/state distinctions should be de-coupled in the area of family law, this is simply not the practice. Divorce requirements are different from state to state (hence the “Reno Divorce” of pop-culture notoriety), yet the federal government recognizes them. And even in the instance of posthumously conceived children, state definitions prevail, as the Supreme Court unanimously held in Astrue v. Capato (2012).

Principles of federalism support deference to state definitions of marriage, just as they support deference to state definitions of what it means to be someone’s child, someone’s sister, someone’s brother, someone’s parent, or someone’s ex. Federalizing these definitions may well lead to greater uniformity across the United States—but so would federalizing the right to marry one’s motorcycle.

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