Federal Response to Same-Sex Marriage

Blumstein, James james.blumstein at Law.Vanderbilt.Edu
Wed Feb 11 15:07:42 PST 2004

I do not intend by this to get into the wisdom or lack thereof of either the Mass. SJC decision on same-sex marriage or the proposed constitutional amendment to overturn it.  I raise the following question as a matter of constitutional law, were one, hypothetically, inclined to find an alternative to an amendment process as a federal response to the Mass decision.
	What would happen if the federal government conditioned receipt of money -- either generally for all federal programs or for more targeted programs -- on a state not allowing same-sex marriage?  South Dakota v. Dole upheld such a conditioning process on a state's permitting purchase of alcoholic beverages to persons only 21 years of age or older.  An analogous issue arose in the context of state certificate of need legislation, which the NC Supreme Court held violative of the state constitution.  NC challenged federal legislation that required states to adopt CON laws if they were to be eligible for certain federal funds since that provision forced NC to violate its own constitution if it were to qualify for federal funding. The federal provision was upheld as applied to NC.  State of NC ex rel. Morrow v. Califano, 445 F. Supp.532 (E.D. N.C. 1977), aff'd 435 U.S. 962 (1978).  NC later re-enacted its CON law and the state courts apparently enforced the new enactment, finding it distinguishable from the earlier CON legislation... I am curious to thoughts on the doability of this as a constitutional strategy from the list...

James F. Blumstein
University Professor of Constitutional Law
   and Health Law and Policy
Vanderbilt Law School
131 21st Avenue South
Nashville, TN  37203
Telephone: (615) 322-2613
Fax: (615) 322-6631 

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