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Federal Regulation of Marriage: a Study in Contradictions

  • Date Submitted: 12/02/2010 06:00 PM
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Federal Regulation of Marriage:   A Study in Contradictions
With laws for and against same-sex marriage becoming so prevalent on the national scene in recent years, there has been much confusion, and on the part of congress, dictation on morals as to what constitutes “marriage” for purposes of federal law.   Many state and federal regulations rely on a State definition of marriage for purposes of conferring rights and benefits to citizens.   As promulgated, these regulations have a long-standing constitutional and jurisprudential basis.   Such regulations were enacted to protect the spouses of accident victims, veterans, employees, and retirees.   Congress, however, in enacting a federal definition of marriage in contradiction of these regulations, has created an ambiguity that threatens the validity of regulations that define marriage or spouse.   Because the regulations, as they exist, serve to protect a greater number of citizens, any contradictions should be resolved in favor of the language as it exists and against any attempts to constrain the definitions of marriage or spouse.
There are several examples in the Code of Federal Regulations where state law is used to define marriage.   In applying Treasury Regulations, “whether… an individual is married is… to be determined by the law of the State of the marital domicile” (Dunn v. Commissioner, 1978, p. 366).   “Spouse” is defined pursuant to state law for purposes of federal employee benefits (Code of Federal Regulations, Title 5, section 843.102).   Social Security regulations with respect to survivor and death benefits state that an applicant “is the wife, husband widow or widower… if the courts of the State… [of which the deceased was a resident]… would find such an applicant and such insured individual were validly married” (Code of Federal Regulations, Title 42, section 416(h)(1)(A)(i)).   For the purposes of the   Department of Veterans of Affairs, marriage “means a marriage valid under the law of the place...


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