Eugene Volokh's Blog, page 2650

Ninth Circuit Affirms Confirmation of Iran's Arbitration Award Against Arms Supplier

(Eugene Volokh)

An interesting decision in Ministry of Defense and Support for the Armed Forces of the Islamic v. Cubic Defense Systems (9th Cir. Dec. 15, 2011), dealing with the public policies in favor of confirming international arbitration judgments, and against transferring money to Iran. A few excerpts:

These appeals require us to decide whether confirmation of an arbitration award in favor of the Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran is "contrary to the public policy" of the United States under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, known as the "New York Convention." We hold, consistent with the position of the United States as amicus curiae, that confirmation of the award does not violate any public policy of the United States. We also hold that the district court's judgment is a "money judgment" subject to postjudgment interest, and that a district court has discretion to award prejudgment interest and attorney's fees in an action to confirm an arbitration award under the Convention. Accordingly, we affirm the judgment in part, vacate it in part and remand to the district court for reconsideration of the Ministry's motions for prejudgment interest and attorney's fees....

In 1977, Cubic International Sales Corporation, predecessor in interest to appellant Cubic Defense Systems, Inc. ("Cubic"), a United States corporation, contracted with the Ministry of War of the government of Iran, predecessor of appellee Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran ("Ministry"), for sale and service of an air combat maneuvering range for use by Iran's military. The Iranian Revolution resulted in nonperformance of the contracts. Consequently, the parties agreed in 1979 that the contracts would be discontinued and that Cubic would try to resell the equipment, with a later settlement of the accounts. In 1981, Cubic sold a modified version of the equipment to Canada.

In 1982, the Ministry filed breach of contract claims against Cubic with the Iran–United States Claims Tribunal at the Hague. In 1987, that tribunal issued an order stating that it lacked jurisdiction to hear the matter.... In 1991, the Ministry filed a request for arbitration before the International Court of Arbitration of the International Chamber of Commerce (ICC). The ICC, sitting in Switzerland, made a final award in those proceedings in May 1997. The final award makes a net award of $2,808,519 plus pre-award interest in favor of the Ministry. The ICC also directed Cubic to reimburse the Ministry $60,000 for arbitration costs.

In June 1998, after Cubic failed to pay, the Ministry filed a petition in federal district court to confirm the ICC's award under the New York Convention. [Footnote: Confirmation is a summary proceeding that converts a final arbitration award into a judgment of the court. Once the award is confirmed, the judgment has the same force and effect of a judgment in a civil action and may be enforced by the means available to enforce any other judgment.]

The Ministry subsequently filed a motion for prejudgment interest covering the period between the ICC's final award and the district court's confirmation. The motion also requested attorney's fees based on Cubic's alleged failure to comply with the ICC's decision. The district court denied the motion, concluding that prejudgment interest and attorney's fees were unavailable in an action to confirm a foreign arbitration award under the Convention.

The district court entered judgment in August 1999. Cubic timely appealed confirmation of the award, and the Ministry timely cross appealed denial of prejudgment interest and attorney's fees. Proceedings were suspended pending litigation over whether certain judgment creditors of Iran could attach the Ministry's judgment. That litigation has now been concluded....

First, although American relations with Iran are heavily regulated, the applicable sanctions regulations "do not preclude the confirmation of the ICC Award." The Iranian Assets Control Regulations, which the United States adopted in response to the seizure of American hostages in Tehran in 1979, block the transfer of certain property in which Iran has an interest. A general license, however, authorizes the transfer of property interests acquired after January 1981, and the Supreme Court has already held that Iran's interests in this case are covered by that general license. See Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, 556 U.S. 366 (2009). The Iranian Assets Control Regulations accordingly do not prohibit payment, let alone confirmation, of the ICC award.

The Iranian Transactions Regulations and the WMD Sanctions Regulations also permit confirmation of the award. As noted, each of these sets of sanctions independently prohibits payment of the ICC award without a specific license issued by OFAC. Neither regime, however, prohibits confirmation of the award.

Second, although Cubic places great stock in the regulations' prohibition on payment (absent a license), there is a great deal of difference between payment and confirmation. Confirmation, standing alone, transfers no wealth to Iran. Thus, even if Cubic is correct that the United States has a fundamental public policy against economic support for the government of Iran, confirmation does not violate that policy.

Third, the difference between confirmation and payment is accentuated when, as in this case, payment is subject to licensing rather than barred absolutely. We should not refuse to confirm an arbitration award because payment is prohibited when payment may in fact be authorized by the government's issuance of a specific license. According to the United States' brief, "[i]f this Court affirms the confirmation of the award, the Treasury Department can issue a license requiring Cubic to make any payment satisfying the judgment into a blocked account held in the Ministry's name by a U.S. financial institution." The possibility that OFAC could issue a license supports confirmation of the award. Cf. Belship Navigation, Inc. v. Sealift, Inc., No. 95 CIV. 2748, 1995 WL 447656, at *6 (S.D.N.Y. July 28, 1995) ("Any award that Belship might recover through arbitration would be placed in a 'blocked' interest bearing account until relations with Cuba improve to the point where the funds may be released to Belship. Allowing arbitration to proceed will hardly violate the United States' 'most basic notions of morality and justice.' "). [Footnote: The United States explains that OFAC may issue a license requiring Cubic to pay the award into an account where it would be used to offset any liability the United States may have to Iran in connection with ongoing proceedings in the Iran–U.S. Claims Tribunal regarding the Cubic contracts.]

Fourth, the applicable regulations provide general licenses authorizing legal representation of Iran in legal proceedings in the United States relating to disputes between Iran and a United States national. See 31 C.F.R. § 544.507(a)(3) (authorizing "legal services to ... persons whose ... interests in property are blocked," for the "[i]nitiation and conduct of domestic U.S. legal ... proceedings in defense of property interests subject to U.S. jurisdiction"); id. § 560.525(a)(3) (authorizing the provision of legal services for the"[i]nitiation and conduct of domestic United States legal ... proceedings on behalf of the Government of Iran"). Although these regulations do not expressly authorize confirmation of foreign arbitration awards in favor of Iran, they show that legal proceedings to resolve disputes such as this one are, short of payment of a judgment, not in conflict with United States sanctions policy.

Finally, as noted, the United States as amicus curiae supports affirmance of the district court's confirmation of the ICC's award. An expression of national policy is not necessarily dispositive of the public policy issue under the Convention. See Parsons & Whittemore, 508 F.2d at 974 ("To read the public policy defense as a parochial device protective of national political interests would seriously undermine the Convention's utility."). Nonetheless, given Cubic's invocation of our country's fraught relationship with Iran as expressed through various trade sanctions, the government's confirmation that the ICC's award comports with the national and foreign policy of the United States is entitled to great weight. Cf. Nat'l Oil Corp., 733 F.Supp. at 820 ("Given [that the current Administration has given Libya permission to bring this action], this Court simply cannot conclude that to confirm a validly obtained, foreign arbitral award in favor of the Libyan Government would violate the United States' 'most basic notions of morality and justice.' ").

For these reasons, we hold that confirmation of the ICC's award is not contrary to the public policy of the United States under Article V(2)(b) of the New York Convention. Cubic has not identified a public policy sufficient to overcome the strong federal policy in favor of recognizing foreign arbitration awards.

A Common-Law Solution

(William Baude, guest-blogging)

So I've explained why I reject two of the three possible approaches that federal courts take to the marital choice of law problem. The one that's left over is the so-called federal common law approach, where courts craft a common-law doctrine for deciding which state's marriage law is relevant to a federal statute.

You might ask, wasn't federal common law forbidden by the Court's decision in Erie v. Tompkins? No, not really. Here is how the Court explained it just last term in AEP v. Connecticut:

"There is no federal general common law," Erie R. Co. v. Tompkins famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964). Erie "le[ft] to the states what ought be left to them," id., at 405, and thus required "federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states," id., at 422. Erie also sparked "the emergence of a federal decisional law in areas of national concern." Id., at 405. The "new" federal common law addresses "subjects within national legislative power where Congress has so directed" or where the basic scheme of the Constitution so demands.

I elaborate on this more in the paper, but basically it should be pretty clear that this kind of choice-of-law rule — choosing the state law on which a federal statute has chosen to rely — is the kind of "area of national concern" where a federal common law rule is okay.

That leaves us with the question: well, what rule? It may be a little anticlimactic to say so, but I don't actually think it is that important what the rule is. The important thing is that there be a rule, so that federal law have a consistent test for deciding whether a couple is married. (As others have noted, whether a couple is married will still depend on state law, but at least the federal law will have a single approach for evaluating it.)

The rule I advocate in the paper is that the courts should look at the choice-of-law rules of the couple's domicile. So, if a same-sex couple lives in Massachusetts or Maryland or New Mexico, they are married for purposes of federal law. If they live in Texas, they are not.

Basically, I think the federal government's goal here should be to leave the smallest footprint possible, and I think the federal government does that best by treating couples the same way at home as their state does. (Obviously there are arguments that federal law should guarantee a constitutional right to same-sex marriage, but if so, that should be done directly, through interpretation of the 14th Amendment, not in a roundabout fashion by manipulating choice of law.)

Another important consideration is that there are at least a couple of statutes that do provide marital choice of law rules (for social security and for some veterans benefits) and they both look to the law of the domicile. These statutes were trumped, for same-sex marriages, by DOMA, but they will presumably spring back into effect if DOMA is gone. They affect just a tiny piece of the federal law of marriage recognition, but it would be best for a federal common law rule to be consistent with them, so that marriage can get a unified treatment throughout federal law.

So there you have it. My experience has been that a lot of people have different intuitions about what the right federal common law rule should be, and that those intuitions tie very closely to whether they like or don't like the right to same-sex marriage. But if I've convinced you that there should be a rule, and that courts have the power to create a rule, that's the important part.

I have a little bit more to say about this– about both Congress's role, and about a few other areas of law. I'll try to post about them tonight or this weekend, before my magic Volokh credentials turn back into a pumpkin, and I turn back into a regular, non-blogging fellow.

What Happens to Straight People

(William Baude, guest-blogging)

Before I get to the last phase of my stint here, I thought it would be helpful for me to address one recurring theme in the comments. John D's comment this morning is representative: "how are opposite-sex married couples treated in conflict-of-laws situations? We'll take that, then."

The important thing to recognize is that there is no established answer for how opposite-sex married couples are treated! All of these posts about different approaches aren't hypothetical, they're all real doctrines already applied to the conflicts problem outside of the same-sex context.

I think this is non-intuitive for many people — lawyers and non-lawyers — because they have a sense that legal uncertainty is pretty commonplace, and people usually manage to just muddle through. Even if doctrine is uncertain on the margins or theoretically incoherent, most of the time it just doesn't matter much. But choice-of-law doctrine is unusually uncertain, and unusually incoherent, even compared to other legal doctrines!

Also, there are two practical reasons that these uncertainties haven't made much of a difference, most of the time, to straight couples.

First, the uncertainties really bubble to the surface only when some states so strongly oppose a type of marriage that they exercise their traditional prerogative to refuse to recognize that marriage when it is consummated out of state. That hasn't happened very often.

Second, the times when it has happened have simply not featured the same numbers as same-sex marriages do. In the last census, more than 130,000 same-sex couples described themselves as married! (Interracial marriage might have featured sizable numbers, I'm not sure, and if so, I'm not sure why the problem didn't come up as much as you would expect in that context. I wonder if it had to do with the smaller size and scope of federal regulation.)

Anyway, I agree that, without DOMA, the conflicts rules for opposite-sex marriage will be applicable to same-sex marriages. But the point is that there is no single conflicts rule for opposite-sex marriages, and the same-sex marriage controversy will probably force us to resolve the old conflicts problem at long last.

Christopher Hitchens, Ave Atque Vale

(Kenneth Anderson)

The great Christopher Hitchens has died.  Our families were friends; our deepest sympathies to his wife Carol and his children.  For my own part, this is how I remember Hitch, from Cyrano de Bergerac, Act V: Cyrano's Gazette (comments are open):

He attacks the false priests, the false nobles, the false landowners, the false artists:

In short, he attacks everyone!

What's Wrong with Klaxon

(William Baude, guest-blogging)

So earlier this morning (yesterday, Eastern Time, which apparently governs the Volokh Conspiracy), I explained why the federal government does indeed need to look in large part to state law when it tries to figure out whether a couple is married. In this post we'll discuss another alternative solution with a goofy case name: "Klaxon."

To recap, Klaxon is a general rule for solving choice of law problems in federal court when there is no federal law involved. And the solution Klaxon provides depends on the physical location of the federal trial court where the litigation takes place. It says that the federal trial court should imagine itself as a state court in the same state, and then do whatever that state's courts would do.

Commenter "JHW" asked, in the previous post mentioning Klaxon:

Is there a practical difference, in the marriage recognition context, between the Klaxon rule and the "federal common law" rule that the law of the domicile is controlling?

There would be, presumably, in a diversity case, if for example the spouses lived in different states. But for a couple living in the same state seeking federal recognition, it seems that applying a state's choice-of-law rules and applying a state's marriage recognition rules amounts to applying precisely the same set of rules. Perhaps because I'm nearly totally ignorant of this area of law, the way you've framed this confuses me a bit.

There is a big difference: a Klaxon rule will often pick a very different state than the parties' domicile, because Klaxon depends entirely on what state the lawsuit is in, and federal lawsuits can often be filed in one of several different districts. (There is a legal doctrine called venue that determines what district a lawsuit can be filed in.) So a couple might live in Texas, but wish to challenge an agency action in the District of Columbia or someplace totally different.

Now, as I noted earlier, this Klaxon rule controls in federal lawsuits that are brought in diversity jurisdiction, i.e. when no federal law is involved. And several courts (though not the Supreme Court) have suggested that the rule should be extended to federal cases too. I don't think that makes much sense.

Here's the most important reason why. Federal law is frequently enforced and administered by the executive branch. That's a huge amount of what administrative agencies do all day, and we expect agencies to apply federal law in a huge range of cases that will never go to court, or will only go to court years later, after the agency has hopefully gotten things pretty much right.

But the Klaxon rule and the executive branch don't mix very well. Under the Klaxon rule, you only know what law to apply once there has been a federal lawsuit, because only then will you know in what state the district court is located. So the executive branch just has to guess where the litigation will be brought. Moreover, since the plaintiff often has a choice of several different venues, he can strategically select a venue that will produce a choice of law rule that will contradict what the executive branch did.

This isn't a problem in the diversity jurisdiction context, because the executive branch isn't very involved in enforcing state law. But executive branch enforcement is a big part of federal law which results in federal question jurisdiction. The fact that Klaxon doesn't mesh with executive branch enforcement is a very important reason not to extend Klaxon to federal question cases.

By process of elimination, that means that federal courts will have to craft their own choice of law rule as a matter of so-called federal common law. Tomorrow, we'll talk about what that rule should be.

Court Rejects Prosecution of Man for Writing Many Insulting Tweets and Blog Posts About Religious Leader

(Eugene Volokh)

I blogged about this in August, but now there's a District Court decision dismissing the indictment, United States v. Cassidy (D. Md. Dec. 15, 2011), and it strikes me as generally quite correct. Here is a rough summary of what seem to be the facts, from the original post:

William Lawrence Cassidy is charged with violating the federal antistalking statute, 18 U.S.C. § 2261A by "with the intent to harass and cause substantial emotional distress to a person ... us[ing] an interactive computer service ... to engage in a course of conduct that caused emotional distress to that person, to wit: the posting of messages on www.twitter.com and other Internet websites concerning [Alyce Zeoli]." (For details about Cassidy's tweets and post, see the criminal complaint.)

Here's the backstory:

Born in Canarsie, Brooklyn, Ms. Zeoli is considered to be a reincarnated master in the Tibetan Buddhist religious tradition, and is known to her followers as Jetsunma Ahkon Lhamo. She is an avid Twitter user, with 23,000 followers. A representative for Ms. Zeoli said she declined to be interviewed for this article.

According to the F.B.I. and Ms. Zeoli's lawyer, Mr. Cassidy also claimed to be a reincarnated Buddhist when he joined Ms. Zeoli's organization, Kunzang Palyul Choling, in 2007. He signed up using a false name and claimed to have had lung cancer, they said. Ms. Zeoli's organization cared for him and, briefly, even appointed him to its executive team [as Chief Operating Officer]. The relationship soured after they came to doubt his reincarnation credentials and found that his claims of cancer were false. Mr. Cassidy left.

After Cassidy left, he started saying insulting things about Zeoli online, ultimately with over 8000 tweets over the span of several months. A few could be seen as potentially threatening, e.g., "ya like haiku? Here's one for ya: 'Long, Limb, Sharp Saw, Hard Drop' ROFLMAO." But the complaint isn't limited to those, or even mostly focused on them; it also includes statemento like, "[Zeoli] is a demonic force who tries to destroy Buddhism," "[Zeoli]: somebody throw a couple shots of gin in the bitch & get her back on twitter: shes fun 2 play with," and "[Zeoli] is no dakini: shes a grossly overweight 61 yer old burnt out freak with bad bowels & a lousy outlook: her 'crown' is a joke." And the statute under which Cassidy is prosecuted is by no means limited to threats — the relevant provisions generally ban

engag[ing] in a course of conduct [using the mail or interactive computer services] that causes substantial emotional distress to [a] person" "with the intent to ... harass ... or cause substantial emotional distress to [that] person."

And here's a brief summary of the court decision:

1. The judge rightly concludes that "the only portion of Section 2261A(2)(A) mentioned in the Indictment amounts to a content-based restriction" on speech, "because it limits speech on the basis of whether that speech is emotionally distressing."

2. The judge rightly suggests that statements made about a person to the public at large are constitutionally protected even if, when said to a particular person on a one-to-one basis (as through a telephone call or an individually targeted e-mail), they might be punishable.

3. The judge concludes that, even if — assuming for the sake of argument — the statute were constitutional in some situations as to statements made to the public at large, it would not be constitutional as applied to "individuals engaging in political debates or critiques of religious leaders." That too strikes me as correct. I don't think the statute would be constitutional as to speech to the public even outside political and religious debates, at least when the speech isn't a threat or libel or otherwise unprotected under the existing First Amendment protections (and the judge doesn't hold that the statute would be constitutional in such cases). But I do think that the statute certainly is unconstitutional as to such speech to the public when it relates to political and religious questions, as it does here.

4. The judge concludes that he need not decide whether the statute is unconstitutional on its face, because the defendant wins on the grounds that the statute is unconstitutional as applied.

So this strikes me as a substantial victory for free speech; I do not know whether the government will appeal. For more, see this New York Times article by Somini Sengupta.

"Look, We Can Either Study for Our Law School Finals, or We Can Bring About the Violent Dissolution of the American Legal System"

(Orin Kerr)

Via McSweeney's. I'm sure many law students have had similar thoughts in the last two weeks. (Hat tip: Law Librarian Blog)

"Hiring [a Lecturer] Stridently Opposed to Gay Rights Goes Against the [University's] Ethic of Nondiscrimination"

(Eugene Volokh)

That's what one Hamline University business school professor said, in opposing the hiring of another prospective business school professor, according to the St. Paul Pioneer Press:

A Hamline University professor said Wednesday that hiring [former Republican gubernatorial candidate] Tom Emmer would have been a bad business decision for the school, while Emmer said "political bigotry" in higher education is discriminating against people with conservative views like his....

Asked whether the decision not to hire Emmer had anything to do with faculty concerns about his political views, [Hamline spokeswoman JacQui] Getty said Hamline would have no comment beyond a statement ... [that] said "there were conversations" about Emmer joining the faculty but "no finalized agreement."

Jim Bonilla, an associate professor in Hamline's business school, said he wrote to McCarthy with concerns about Emmer's appointment and that he knows of two other professors, outside the business school, who raised concerns with Hanson.

He said he doesn't know whether faculty concerns about Emmer factored in the administration's decision not to hire him.

For Bonilla, listed on the school's website as a consultant on diversity in higher education and the founding director of "Race, Gender & Beyond" program, there is a business case and a social justice case to be made against Emmer.

In terms of business, he pointed to fallout from gay-rights groups after Target Corp. donated $150,000 to a political fund that in turn supported Emmer.

And hiring someone stridently opposed to gay rights goes against the school's ethic of nondiscrimination and works against training the staff does on creating safe spaces for gay and lesbian students, Bonilla said.

"That would be money wasted," he said. Not hiring Emmer allows Hamline to make a decision "congruent with our values and a sound business decision," Bonilla said....

Despite the school's statement that there was no agreement to hire him, Emmer said "there is no question" he was hired for the teaching job and that there was an agreement in principle on the "executive in residence" position....

For an e-mail that apparently supports Emmer's view that he had indeed been hired ("I am the new Department Chair under which Business law falls. For the spring we are offering a session during the day and Tom Emmer is going to teach it."), see this Minnesota Public Radio site. There's also more from the Hamline Oracle, the university student newspaper, here and here. The latter item notes that, "Business Professor David Schultz ... said that after staff began hearing about the possibility of Emmer joining the Hamline faculty, e-mails were drafted by some staff members to be sent to administration outlining their concerns over the hiring of Emmer.

"Schultz said that the faculty was concerned for two major reasons, including whether the political positions Emmer holds were incompatible with the university's mission, specifically his stance on same-sex marriage.

"The second concern stemmed from the way Emmer was possibly being hired. Staff were being told that he was simply selected by McCarthy, which goes against the faculty handbook, Schultz said. The procedures for new hires includes a hiring committee and faculty review, which was not happening at the time faculty heard the rumors that Emmer was being hired."

If the university did indeed refuse to hire Emmer because of his views on same-sex marriage, that would be a very serious breach of traditional and sound academic freedom norms, and a sign that the Hamline business school is seeking to be an ideological cocoon — for its faculty and its students — rather than a place where debate and academic freedom are genuinely present and valued. Of course it would send a pretty poor message to its students, who would rightly wonder whether a faculty that does this to an appointments candidate would likewise retaliate against students who express unorthodox opinions. And naturally it would have an effect far beyond the question of same-sex marriage: Students and prospective family members who see an institution being willing to exclude someone who shares the same views as about half the country would likely worry even more that it would exclude or retaliate against people who have (certain kinds of) less popular views.

Of course, this is a big "if": We know what Prof. Bonilla believes about how the university should deal with dissenting viewpoints on the subject, and we have heard from Prof. Schultz about what "some staff members" thought, but we don't know whether this was indeed part of the business school's decision. I would like to know more about whether the business school takes the same approach to academic freedom and diversity of views that Prof. Bonilla does.

What's Wrong With Borax

(William Baude, guest-blogging)

Yesterday I outlined the three different ways that courts have dealt with the concept of marriage in federal statutes. I ultimately hope to convince you that they should be using the so-called "common law" approach. But my argument is essentially one of process of elimination. So in this post I'll explain why the "Borax" method of defining marriage without reference to state law is bad.

First of all, let me acknowledge a point made repeatedly by Andy Grewal in the comments. It is true, in a technical but important sense, that the meaning of the word "marriage" in a federal statute is a question of federal law. Congress gets to decide what it's referring to when it uses that word, and so the "choice of law" question that I've been grappling with has a hidden premise, and the premise is that Congress did indeed intend the word to draw upon the state law concept of marriage.

Nonetheless, I think this premise is right. The Supreme Court has said that it is right, holding in Desylva v. Ballentine that the word "children" in the Copyright Act should be defined by reference to "the ready-made body of state law" because "there is no federal law of domestic relations, which is primarily a matter of state concern." (The Court also went on to look at the law of a particular state, not to try to derive some sort of generic consensus state law.)

This approach makes sense too. When people think of marriage, as a legal matter, they think about the institution that is created and defined by state law. It doesn't really make sense to ask for a court to ask whether a couple is "married" except in the state-law sense. This brings us back to the point that federal officials (territories, enclaves, and other exceptions aside) don't issue marriage licenses.

Now, let me acknowledge a second Grewal point, which is that even if what I say is mostly right, surely there is some theoretical state law that is so crazy that the courts wouldn't rely on it. (Commenters like to invoke the old saw about calling a "tail" a "leg" here– imagine a state that for some mysterious reason used the word "marriage" to describe all contractual relationships of any kind.) Indeed, in DeSylva the court said that a "State would [not] be entitled to use the word 'children' in a way entirely strange to those familiar with its ordinary usage," (but, it added, "at least to the extent that there are permissible variations in the ordinary concept of 'children,' we deem state law controlling.").

This is an accurate caveat. But the whole premise of a world where DOMA is invalidated or repealed is that it is at least "permissible" for the federal government to use the word marriage to include state-sanctioned same-sex marriages. So we are clearly inside the zone where we should "deem state law controlling," meaning that we do indeed need to figure out which state's law to so deem.

I've noticed that the Borax approach has intuitive appeal for a lot of readers. But I want to encourage you to think about how hard it would be to make it work in this context. Imagine that Congress repeals DOMA, without replacing it with any other interpretive rule. A same-sex couple says that they are married, and tries to file their taxes jointly, or one of them tries to claim a spousal employee benefit. Is the same-sex couple married, and what information would you need to decide? I just don't think there's a workable answer that doesn't include "their marriage license" (or equivalent).

Happy Bill of Rights Day!

(Eugene Volokh)

The Bill of Rights went into effect 220 years ago today.