Interstate Pluralism: The Role of Federalism in the Same-Sex Marriage Debate

By Rensberger, Jeffrey L. | Brigham Young University Law Review, November 1, 2008 | Go to article overview

Interstate Pluralism: The Role of Federalism in the Same-Sex Marriage Debate


Rensberger, Jeffrey L., Brigham Young University Law Review


Abstract:

This Article discusses the role of federalism in the debate over interstate recognition of same-sex marriages. It examines and rejects as simplistic the argument that the role of full faith and credit is to promote greater national uniformity. Instead, full faith and credit requires a balancing between the policy of uniformity and its counterweight, state autonomy and particularism (which is termed "interstate pluralism"). The Article identifies how interstate pluralism is reflected in a wide variety of ways in the law. It then seeks to demonstrate the benefits to the individual of being able to choose from different legal communities. It then uses extensive economic and demographic data to demonstrate just how pluralistic states are. It concludes that states should generally apply forum law to decide whether to recognize same-sex marriages.

TABLE OF CONTENTS

I. NATIONAL UNIFORMITY, FULL FAITH AND CREDIT, AND INTERSTATE PLURALISM ................................................. 1706

A. The Overstated Goal of Uniformity .......................... 1707

B. Understanding the Goal of Uniformity: Judgments and Choice of Law ................................................... 1711

1. The case law on uniformity and full faith and credit .................................................................. 1711

2. Why uniformity matters more in the judgment context ............................................................... 1716

II. THE LIMITS OF THE UNIFORMITY POLICY AND THE COUNTERWEIGHT OF INTERSTATE PLURALISM .............. 1720

A. Interstate Pluralism Defined ..................................... 1722

B . Interstate Pluralism Policy Demonstrated ................. 1 724

C. Interstate Pluralism Reflected in Areas Other Than Full Faith and Credit ................................................ 1727

1. Protecting interstate pluralism in the context of vertical federalism ................................................ 1727

2. Protecting interstate pluralism in the context of horizontal federalism ........................................... 1729

3. Protecting interstate pluralism in the context of constitutional interpretation and application ........ 1731

D. The Benefits of Interstate Pluralism ........................... 1733

III. THE DIMENSION OF INTERSTATE PLURALISM: HOW MUCH ALIKE ARE WE? .............................................................. 1740

A. Interstate Pluralism and the Maximalist Constitution ............................................................ 1742

B. How the States Differ: An Empirical Snapshot .......... 1743

1. Marriage, divorce, and births ................................ 1744

2. Suicide rates and mental health ............................. 1753

3. Ethnicity and religion ........................................... 1759

4. Characteristics of the population: age distribution, population growth, and immigration ................... 1770

5. Wealth and education ........................................... 1777

6. Intoxicants of choice ............................................ 1780

7. Follow the money: employment data and charitable giving .................................................. 1785

8. Assessing the empirical snapshot ........................... 1792

IV. CRAFTING CHOICE OF LAW FOR SAME-SEX MARRIAGE TO ACCOMMODATE INTERSTATE PLURALISM ...................... 1795

A. Interstate Pluralism and the Constitutional Right to Same-Sex Marriage ................................................... 1795

B. Same-Sex Marriage and Choice of Law ..................... 1800

C. Conclusion: The Cautionary Tale of Slavery, Dred Scott, and the Civil War ............................................ 1805

This Article discusses the role of interstate pluralism - a term I use to refer to a particular thread of federalism - in the same-sex marriage debate. …

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