Aff. of Jonathan Miller, Ex. 3, p. 1, Report of the U.S. General Accounting Office, Officeof General Counsel, January 23, 2004 (GAO-04-353R).
Id. at 1.
Aff. of Nancy Cott (hereinafter, “Cott Aff.”), ¶ 9. Nancy F. Cott, Ph.D., the JonathanTrumbull Professor of American History at Harvard University, submitted an affidavit on thehistory of the regulation of marriage in the United States, on which this court heavily relies.
Id., ¶ 10.3As of December 31, 2003, there were at least “a total of 1,138 federal statutory provisionsclassified to the United States Code in which marital status is a factor in determining or receivingbenefits, rights, and privileges,” according to estimates from the General Accounting Office.
These statutory provisions pertain to a variety of subjects, including, but not limited to SocialSecurity, taxes, immigration, and healthcare.
B. The History of Marital Status Determinations in the United StatesState control over marital status determinations predates the Constitution. Prior to theAmerican Revolution, colonial legislatures, rather than Parliament, established the rules andregulations regarding marriage in the colonies.
And, when the United States first declared itsindependence from England, the founding legislation of each state included regulations regardingmarital status determinations.
In 1787, during the framing of the Constitution, the issue of marriage was not raised whendefining the powers of the federal government.
At that time, “[s]tates had exclusive power overmarriage rules as a central part of the individual states’ ‘police power’—meaning theirresponsibility (subject to the requirements and protections of the federal Constitution) for the
Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 3 of 36