Some folks, including our Vice President, have advocated for the several States to determine marriage laws and definitions to reflect the preferences of their own community. Others, as we know, have argued for or against civil sanction of various non-traditional marriages. I won’t concern myself with their positions yet because I think the state-by-state position is chock full of interesting questions.
Some immediately see that it won’t work in practice. Would one member of a couple — legally married in state A — traveling in state B be denied power of attorney after a car accident? Would the U.S. Constitution’s provisions for legal reciprocity and “privileges and immunities” be the undoing to this situation? This is largely a problem of contracts and there is ample evidence of federal solutions to contractual problems that arise between competing jurisdictions. Thus, an argument for federal law/jurisdiction of marriage.
Others argue that a state-by-state treatment of the issue is the only Constitutional way to handle the questions of marriage. Currently states sanction marriage. Why? Because the health and welfare functions of government (including police powers) are reserved to the states and other functions (national defense, federal judiciary) are granted to the national government in Washington, D.C. The effects of marriage are all traditionally in the purview of states. Consider the care of children and dependents (John’s point), the taming of male promiscuity (health and social welfare), the lessening of poverty (material welfare).
These people argue that “federalizing” marriage would only further weaken states vis a vis the power grabbing federal government.
So I ask, is marriage and its definitions more like a contract problem or more like a social good/externality problem?
