Amidst all of my many posts about what sovereign courts should do if DOMA is struck down, we suspicion we should contend a small bit about Congress.
First — and this might be apparent to some readers though maybe not to all — Congress could of march repair a choice of law problem by providing a orthodox rule. Indeed, one of a few virtues of DOMA is that it is only such a rule. And in one of a many new proposed bills that would dissolution DOMA, Congress has also due replacing it with a choice of law rule.
I consider this is a good idea. If DOMA goes away, Congress should use a energy to reinstate it with some legitimate choice of law order (obviously, if DOMA is unconstitutional, a deputy order couldn’t be matching to DOMA, though there are a lot of other possibilities).
A congressional choice of law resolution would have some-more legitimacy than a common-law solution, and could be some-more far-reaching, deliberation a broader operation of process considerations. (It could even extend sovereign marital advantages to polite unions, as discussed in my exchange with JHW.) Indeed, a event to yield a deputy order is one reason that Congress ought to dissolution DOMA rather than only watchful around for a courts to have their proceed with it.
As for what order Congress should adopt, we consider a order due in S.598 is a flattering good one. That rule is:
For a functions of any Federal law in that marital standing is a factor, an particular shall be deliberate married if that individual’s matrimony is current in a State where a matrimony was entered into or, in a box of a matrimony entered into outward any State, if a matrimony is current in a place where entered into and a matrimony could have been entered into in a State.
For domestic marriages, a check creates a matrimony current if it was current where a integrate got married. (Note, by a way, that with really singular exception, a matrimony is roughly always current where a integrate got married, since a integrate customarily chooses to get married someplace where their matrimony will be valid.) For general marriages, there is a additional requirement that it contingency be a matrimony that is current in during slightest one state — no polygamy, no brother-sister marriages, no marrying nine-year-olds.
This is something of a “maximalist” proceed to a choice of law problem, since in use it will make roughly all same-s*x marriages valid. (Or during slightest it is “maximalist” within a area of a normal choice of law options.) So we consider it would be cryptic for courts to levy a resolution like this though Congressional authorization. But it would also maximize fortitude and predictability for same-s*x couples, during slightest with honour to sovereign law. As with a common-law solution, there’s copiousness of room for evidence about what order Congress should adopt, though it would be good if it stepped in with a rule.
However, we am desperate about this indeed happening. Scholars have been job for Congress to repair several choice of law problems for decades, and it frequency happens. While a DOMA dissolution check is a pointer that during slightest somebody in Congress has suspicion about this issue, we don’t consider anybody should be holding their exhale for that bill, or any other orthodox solution. That’s because we spent so most time blogging about a courts.