jbagelboy wrote:Can marriage be a "quintessentially commercial or economic" activity under prong 3 of lopez such that one can perform wickard aggregation? It's a contract and has huge implications for the tax code, creates a joint tenancy, joint real estate ect. But there's dicta in lopez and morrison to suggest it's not (traditional realm of state authority, ect).
Also could the restriction on marriage be construed as a threat or obstruction to instrumentalities of interstate commerce under lopez 2? (Married couples not recognized in another state wouldnt travel there, ect, see Heart of Atlanta)
I don't think so - Category 3 of the Lopez
framework is whether "the activity substantially affects interstate commerce"
The most important factor in determining if the activity falls under this category is whether it is "economic or commercial in nature" - the aggregate effect can only be considered when the activity is econ/comm in nature. If it is not - you cannot aggregate it.
Other factors: Is it an area that a state is historically sovereign? are there congressional findings? how attenuated is the connection btwn IC? Is there a Jurisdictional Hook?
Is it necessary to the proper functioning of a comprehensive regulatory scheme (What Raich
Think about the activity - marriage is a private relationship between two adults. NO RIGHT TO CONTRACT (in future)- that is Lochner
Era - which is separate from the Article 1 Contracts Clause right now - only existing contracts, and only the State cannot infringe this right (nothing about federal
In your second paragraph - you are asking about state restrictions on marriage as impeding (Cat 2) instrumentalities or (Cat 1) channels of interstate commerce? Again - the aggregate effect is only for Category 3 of Lopez when the activity is economic or commercial in nature. If it did
fall under Cat 3 of Lopez Frame for Commerce Clause - we would have a Dormant Commerce Clause issue with the state law. But since it is probably not within the scope of CC, then no DCC problem.
It really depends on how the activity is being framed, but I think we still need to be realistic in our arguments. Marriage, the actual relationship, is really not economic or commercial in nature. The Court would probably "pause to consider the implications" of such an unlimited federal power...