Thoughts on Windsor v. United States and The (Limited) Federal Laws that Regulate Marriage
In Windsor v. UnitedStates, the Supreme Court spent a considerable portion of its opinionemphasizing the limits of the federal government’s ability to define and regulatemarriage. As the Court noted, “[b]yhistory and tradition the definition and regulation of marriage . . . has beentreated as being within the authority and realm of the separate States.” (14)
At the same time, the Supreme Court acknowledged that, insome instances, Congress may enact laws that “bear on marital rights andprivileges.” (14-15). The Court thenprovided an example of valid federal laws that interact with state domesticrelations law: immigration law. Inparticular, the Court cited 8 U.S.C. 1186a(b)(1), which is the provision of theImmigration and Nationality Act that terminates a noncitizen’s conditionalresidency status because the underlying marriage upon which the status wasobtained is fraudulent.
In highlighting this example (as well as anotherexample—common-law marriages would be recognized for spousal Social Securitybenefits), the Supreme Court expressed that these federal laws areconstitutional because they promote federal goals. Specifically, the Court stated, “[T]hesediscrete examples establish the constitutionality of limited federal laws thatregulate the meaning of marriage n order to further federal policy.” (15)
The majority’s acknowledgement of the validity of (limited)federal regulation of marriage in Windsoris worth exploring for at least two reasons. First, the Court’s discussion of federalregulation of marriage is incomplete because, as history has shown, the extentof federal regulation is far more expansive than the Court recognized in Windsor. Second, the Court does not state the ways in which the Constitution maylimit the federal regulation of marriage when the federal government does so tofurther “federal policy.”
In this post, I will focus on the ways in which the federalgovernment regulated (and indeed restricted) marriage historically. (I will tackle the issue of the limits offederal regulation of marriage for the purpose of promoting federal policies ina separate post).
For years after World War II, the federal government—vis-à-visthe armed forces—restricted the ability of American soldiers to marry Japanesenational women. (I wrote about suchfederal regulation of marriage in this articlehere and here). To be sure, the regulation of marriage wasnot explicit. It took a number oflaws—immigration, citizenship and military regulations—to do restrictmarriages. Specifically, because Japanese women were notadmissible to the U.S. under immigration law because they were not eligible tobecome U.S. citizens, military officials denied the soldiers’ applications tomarry their Japanese fiancées. Yet, thepurpose and outcome was the same: to prevent American soldiers (mainly Whites)from marrying Japanese women.
Such federal regulation and restriction of marriage was notlimited to Japan. It also took place inEurope, particularly with respect to marriages between African American malesoldiers and White European women. Duringand after World War II, Black soldiers sent numerous letters to the NAACP tocomplain about the extent to which military officials denied their applicationsto marry their White fiancées. Thepurpose of the federal restriction of interracial marriages in Europe differedfrom those mixed-race relationships in Japan. Specifically, the federal government restricted these marriages becausethey were against federal policy. (See picture below for an example of a marriage application, filed by an African American soldier to marry his White fiancee, that was denied by his superiors).
Thus, as the foregoing explained, the federal government hasplayed a bigger role in the regulation and restriction of marriage and familyformation far more than the Supreme Court acknowledged in Windsor. Recognizing thislarger participation in the regulation marriage is important not only forcorrecting our collective historical understanding of how marriages areregulated in the U.S. but also so that we can address questions focusing on theboundaries of such federal regulation of marriage. What were the legal grounds for themilitary’s regulation of marriage in both Japan and Europe? Critically,what federal policies were being furthered such that marriages had to berestricted, especially in ways that curbed interracial marriages? I will address these questions (and others)sometime later. For now, my hope is tohighlight the importance of gaps (widened in my view by Windsor) in our historical understanding of marriageregulation.
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