State of the Union: The States' Interest in the Marital Status of Their Citizens

Abstract

With the prominence of arguments for and against same-sex marriage and covenant marriage, the state regulation of marriage has again assumed prominence. The claim, prominent in both judicial opinions and commentaries, that states have a substantial interest in the marital status of their citizens, reflects a - usually unstated and unargued-for = view of federalism. Additionally, the claim runs up against certain constitutional provisions (e.g., the right to interstate travel and the right to privacy), certain pieces of federal legislation, and the reality of a mobile society, which combine to undermine the ability of individual states to regulate marriage, as well as the justifications for their doing so. The paper also considers whether it is coherent for states to claim a substantial interest in their citizens' being married, while simultaneously making exit from marriage easy (through no-fault divorce) and creating no significant disincentives for cohabitation or raising children outside of marriage.