Probably Stupid SSM Question

Could the Federal Government say “From this day forward, all couples, regardless of gender, may be married in any Federal court. These couples will receive all the Federal benefits of marriage without discrimination. Any institution receiving Federal funds must recognize these marriages.”

In essence it would make SSM legal throughout the US because I can’t see any sate saying “Fine keep your billions in federal funds!”

Does the POTUS have the authority to do this or would it have to be a bill?

See? I told you it was probably stupid. I’m ignorant here, so fix me!

Well, they kind of did this just yesterday, except the part about making states recognize it. Holder announced that same-sex married couples will be treated equally as straight married couples in the eyes of the Federal Government when dealing with Federal law, like federal bankruptcies, even in those states that don’t recognize SSM. It’s not complete recognition because it just applies to stuff having to do with Federal law, but that’s a lot.

Link to CNN article:

That’s kind of what prompted the question.
I was just curious to see how far the Fed could push it if it so wished.

How does this work, though? How do the couples become married? I assume that if they temporarily traveled to a state where SSM was legal and had a ceremony there, that would satisfy the Feds, but the OP proposes a mechanism by which a couple could become married in their own state.

To answer the OP, there’s another problem. Marriage has always been a matter for the states, right? How easily can the federal government just take over a state function?

IMHO, it would be great to do this, I’m just wondering about the how.

Technically, they would have to justify how the Constitution grants the federal government the power to do that. In practice, all sorts of squishy arguments could be made, but somebody would surely challenge it, and it would end up in court.

Exactly: the easiest way for “The Federal Government” to do it is if the Supreme Court decrees that the matter is already implied by the Constitution, and any law opposing it is nullified. (Which is reasonably close to what has already happened.)

Someone help me clear up some confusion about exactly what Holder said. I saw several on-line articles and headlines, and I got some conflicting impressions. Did he say that the Justice Dept will now recognize SSM for call citizens in all (or most) cases wherever relevant?

Or did he simply say that the Justice Department will now recognize and support SSM for all employees of the Justice Department? ISTM that was the impression I got from at least one of the sources I skimmed yesterday.

I was confused by this pronouncement by Holder, because it only applies to married couples, and not just couples who would like to be married but their state won’t allow it?

No, the recognition was for all married couples, not employees of the Justice Department.

What I understood Holder to say in the article was that even if your SSM is not recognized by the state you reside in, in any Federal matters, like Federal bankruptcy, immigration stuff, etc, the Feds will treat you equally to opposite sex married couples no matter what your state’s position on same-sex marriage. This apparently is big because before, the Feds wouldn’t treat you equally. It’s not quite same-sex marriage recognition by states who don’t recognize it, but at least the Feds will treat you equally and there’s apparently a lot of Federal matters that touch you.

I was married in Massachusetts. I live in a state with domestic partnerships but a SSM ban. Now I can receive all federal benefits attendant upon marriage, even though my state wouldn’t perform my marriage and recognizes it not as a marriage but as a domestic partnership-equivalent. If I hadn’t gotten married in another state, but had only a registered domestic partnership in my state, I wouldn’t be considered married for federal purposes and would have to file federal taxes as single and be compelled to testify against my partner. (That’s my understanding, anyway.)

An aside, but the IRS previously announced that an SSM couple legally married in any state, could jointly file their FEDERAL tax returns regardless of whether the state, in which they reside, recognizes same sex marriage.


Yup. It’s an amusing transition year, tax-wise.

With regard to the financial coercion aspect… maybe not.

First, IANAL.

In ruling that states do not have to expand Medicaid as a part of the PPACA, the SCOTUS laid out a path that states could cite to argue against such overwhelming coercion from the federal government. Essentially the Supremes said that if the coercion is too great then the state is not left truly with a choice in the matter and thus the state’s sovereign authority is usurped by the Feds.

SCOTUS disallowed this in the case of Medicaid expansion when no more than about 10% of a state’s budget was on the line. Arguably any equal or greater federal financial coercion would be disallowed by the same reasoning.
Now perhaps having the federal government directly issue a marriage license would be perfectly permissible from a Constitutional perspective and a means to get around the problem.