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Marriage Equality for All (Yes, the Feds Can Do It)

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Alamy
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My partner and I just completed the paperwork for a domestic partnership in Tampa. We took a picture and posted it online. Oh. My. G-d. The firestorm that created! "Are you married?!" "Why didn't you tell us?!" "Congratulations!" Though we were appreciative of the support, we realized that our friends and families were entirely confused. All we did was get the rights to make medical decisions for each other in the city limits (and a few other things); we're not married, and it's not even close. But this raises broader questions, and I realized that there is no uniformity across the nation. In some places, like Florida, a domestic partnership is all you can get, and it's not the equivalent of a civil union. In other states it is. Some states have civil unions and call them that. And a small but growing number of states allow for marriage and call it that. I say we make it uniform: marriage for all! We're one country, so let's figure this out, and enough of the federal government sitting on the sidelines.

I anticipate the argument that the federal government doesn't have the power to regulate marriage. States have the power to regulate marriage, and they always have in the United States. We (myself included, often say the federal government cannot, and should not have authority over marriage. (More accurately, I complained about the Defense of Marriage Act, a law barring federal recognition of marriage equality.) Upon further consideration, however, maybe the federal government should press for marriage equality, and I'm writing to point out that the feds can do it, too.

Why not pressure the states into doing it instead rather than trying to directly mandate it? We already do this all the time, and the Supreme Court says it's OK. It did again just recently.

It did?! Indeed, it did. Chief Justice Roberts, in the earth-shattering Affordable Care Act (aka Obamacare) case, said that Obamacare was A-OK under the federal government's taxing and spending power. Simplistically, the Court has said that the federal government can use a carrot-and-stick approach: Do what we want and we'll give you money; if you don't, we won't.

What about marriage equality? Here's my proposal: The federal government passes a law that reduces funds to state programs if the state doesn't pass marriage equality. Will every state participate? No, probably not. But that doesn't mean the federal government shouldn't be putting its thumb on the scale. Sounds like a perfect time for the feds to, in Chief Justice Rehnquist's words, "further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." Then maybe my fiancé and I can get married, and everyone will know what that means.