Justice Kennedy Won’t Perform Marriages on Federalism Grounds?!

October 31st, 2013

Jess Bravin reports:

However, speaking earlier this month at the University of California Washington Center, Justice Kennedy said the affianced — whether gay or straight –would have to find someone else to do the honors.

“I have a rule: I don’t do weddings,” Justice Kennedy said. The reason has to do more with another doctrine he has championed: federalism.

“I have a theory that federal judges can’t take authority from state laws,” including those that regulate family relations, he said.

Still, on this matter, the Supreme Court’s swing vote emphasized his own judicial modesty. “I can’t figure out whether it’s a valid theory or not,” he said.

Huh? Well, in any event, in the Commonwealth of Virginia, federal judges are not allowed to officiate at weddings. That’s why Ilya Somin got married in D.C. So Judge Smith could preside.

I’ve considered a dormant commerce clause challenge here, though a federalism argument in response is intriguing.

Update: My memory failed. In Virginia, a federal judge can officiate if he or she is a resident of the Commonwealth, and this was not a reason for the Somin wedding to be relocated to D.C. (though this was a brief point of consternation when a Virginia venue was under consideration).