Tyranny, Federalism, and the Federal Marriage Amendment

Abstract

The principle of "federalism in family law" is long-established and deeply embedded in the United States. It is an essential part of the unique American concept of shared sovereignty and a primary manifestation of the key constitutional organizing principle of federalism. However, judicial respect for and application of the principle of federalism in family law has not been consistent, especially in recent decades. In many decisions during the past thirty years, federal courts (especially) have simply ignored the principle of federalism in family law, and the judicial doctrine of deference to federalism in family law seems to have eroded significantly. In several high-profile decisions involving disputed applications of or controversial references to federalism in family law, however, the Rehnquist Court has begun a modest revival of the doctrine of federalism in family law.