Courtney G. Joslin, University of California, Davis, School of Law, is publishing Windsor, Federalism, and Family Equality in the Indiana Law Journal. It is also available as UC Davis Legal Studies Research Paper No. 394. Here is the abstract.
The myth of family law’s inherent localism is sticky. In the past, it was common to hear sweeping claims about the exclusively local nature of all family matters. In response to persuasive critiques, a narrower iteration of family law localism emerged. The new, refined version acknowledges the existence of some federal family law but contends that certain “core” family law matters — specifically, family status determinations — are inherently local. I call this family status localism. Proponents of family status localism rely on history, asserting that the federal government has always deferred to state family status determinations. Family status localism made its most recent appearance (although surely not its last) in the litigation challenging Section 3 of DOMA.
This Article accomplishes two mains goals. The first goal is doctrinal. This Article undermines the resilient myth of family law localism by uncovering a long history of federal family status determinations. Although the federal government often defers to state family status determinations, this Article shows that there are many circumstances in which the federal government instead relies on its own family status definitions.
The second goal of this Article is normative. Having shown that Congress does not categorically lack power over family status determinations, this Article begins a long overdue conversation about whether the federal government should make such determinations. Here, the Article brings family law into the rich, ongoing federalism debate — a debate that, until now, has largely ignored family law matters. In so doing, this Article seeks to break down the deeply-rooted perception that family law is a doctrine unto itself, unaffected by developments in other areas, and unworthy of serious consideration by others.
Download the article from SSRN at the link.