DOMA, §3, falls to “States’ Rights” argument


By Shawn Carter

As the title of this post indicates, the United States Supreme Court, by a vote of 5-4, ruled that Section 3 of the federal Defense of Marriage Act (“DOMA”) is unconstitutional.

What specifically?

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. §7.

What does this mean?  If you marry in a State where same-sex marriage is legal, then the federal Government must recognize it for legal purposes.

Associate Justice Anthony Kennedy, writing for the majority, said the following:

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. 

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Justice Kennedy goes further to say:

“While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”

Straight Dope

Essentially after years of seeing states’ rights, long a code word for segregation and prejudices of all types, finally used to vindicate the constitutional rights of many, I chuckled as I hearken back to a very long conversation I had with someone on this very subject three years ago today.

We were talking about same-sex marriage and marriage equality under the Law.

But first, this from the dissent filed by his Honor, the Chief Justice of the Supreme Court of the United States:

The Court does not have before it, and the logic of its opinion does not decide, the distinct question of whether the States, in the exercise of their “historic and essential authority to define the marital relation,” may continue to utilize the traditional definition of marriage.

This is an important distinction for reasons upon which the Chief Justice subsequently elaborated:

The majority extensively chronicles DOMA’s departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.”

But there is no such departure when one State adopts or keeps a definition of marriage that differs from that of its neighbor,for it is entirely expected that state definitions would “vary, subject to constitutional guarantees, from one State to the next.”

Which brings me to the central point the Chief Justice is making here on this topic:

Thus, while “[t]he State’s power in defining the marital relation is of central relevance” to the majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.

In other words:

We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.

You better believe it.

Three years ago, I suggested that if properly challenged, there can’t possibly be a way for the government (state or federal) to justify the constitutionality of prohibiting any two adults the right to marry based on a definition of marriage so deeply rooted in “tradition.”

Associate Justice Alito opines in his dissent:

In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools.

That is precisely what America is asking.  It is precisely what the issue here is.  And it took some time for me to fully understand and appreciate that point as well.

Justice Alito delves further:

The first and older view, which I will call the “traditional” or “conjugal” view, sees marriage as an intrinsically opposite-sex institution. Bipartisan Legal Advisory Group (“BLAG”) notes that virtually every culture, including many not influenced by the Abrahamic religions, has limited marriage to people of the opposite sex.

Except that here in America, we are a nation explicitly founded by a bunch of white men who revered their sovereign right to practice their Abrahamic religion(s) free from intrusion by the government and then established States where many of the laws and customs were based on a morality that could come from no place other than those very Abrahamic religious beliefs.

Ask MOST defenders of opposite-sex-only-marriage why they are right, and they can cling, only desperately, to religion.

TCPalm; Christopher Arnold

 And I thought to myself three years ago today, “At what point does that not violate the Establishment Clause of the First Amendment to the Constitution of the United States?”

Because if not inherently violative, this peeks awfully close to a near-naked violation of the separation of church and state envisioned by the First Amendment.

But back to the Chief Justice for a minute, because his dissent, I believe, was measured, and stands as a warning to those celebrating in the streets and to those who would let loose the dogs of the culture war on them:

We’re a long way from home on marriage equality.  Today’s decision merely reaffirmed that the federal government was constitutionally constrained to respect the definitions of marriage as defined by the many States.

It won’t be long before that creates conflicts between States, as citizens of this Republic also have the Constitutional right to Interstate travel.

The Supreme Court will eventually, and likely sooner than later, have to resolve, to re-quote the Chief Justice:

We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.

But progress is progress, nonetheless.

And to those who fight the often thankless fight for the rights of Citizens in our Nation, I salute you.

Now, let’s get Congress to re-write Section 4 of the Voting Rights Act.

11 thoughts on “DOMA, §3, falls to “States’ Rights” argument

  1. BrianTH

    We'll have to see, but Justice Kennedy's opinion for the Court in Windsor was really an extension of Romer and Lawrence, and accordingly his reasoning didn't really depend heavily on states' rights or federalism in general. Basically, the traditional role of states in this area was only important insofar it was treated by the Court as a red flag that the federal government suddenly departed from those traditions in DOMA. But ultimately the Court held that DOMA Section 3 was a violation of individual rights as protected by the Fifth Amendment, not of states' rights.

    So I think insofar as the Chief Justice was playing up the quasi-federalist portions of the Court's opinion, he was basically trying to do damage control. And in that sense I think that Justice Scalia's dissent, no matter how inappropriately intemperate, was more accurate in terms of predicting the implications of the Court's actual reasoning.

    Of course this sort of reasoning in Windsor was predictable, and in a way predicted by Justice Scalia, on the basis of Romer and Lawrence. So it isn't necessarily a surprise it came out this way, although people had wondered if Justice Kennedy was ready to take such a step (evidently he was).

  2. Bram Reichbaum

    Most of the commentary I'm hearing (your bff Rachel Maddow spent half last night's show on it) seems to believe that the Courts are destined to resolve that interstate travel conflict in favor of the marriages.

    You write about religious conviction as a backstop. I'm sure many of social conservatives sincerely believe that about their own opinion, but they're wrong. Their actual religions hardly address the subject in the text, and to the extent it can be interpreted that way, so what? The text says a lot of things about slavery, stoning, the administration of justice that sound patently ridiculous today, and are disregarded out of hand. The only way to resolve why certain other sections of the text need to be held sacrosanct today is that those people already agree with the assertion. It's the “yick!” argument that's the real backstop. Which is terrible, because most heterosexual encounters between typical American bodies are pretty disgusting to neutral observers as well.

  3. BrianTH

    The demise of DOMA Section 2 and the state “mini-DOMAs” as applied to gay couples married in other states would seem to follow pretty directly from the reasoning in Windsor.

    Under Windsor, those couples certainly have a strong interest in the recognition of their marriages which is protected by the 5th and 14th Amendments, and which cannot constitutionally be deprived unless it could somehow be shown that the federal and state governments in question have a legitimate, meaning non-animus-based, interest for specifically not recognizing gay marriages, when their normal practice is to recognize straight marriages formed in other states barring limited exceptions.

    After Romer, Lawrence, and Windsor, and after the extensive trial in Hollingsworth, it is hard to believe such a non-animus-based interest will finally be found. Again, you could theoretically think about various federalism issues, but none of that really matters if there is a 5th/14th Amendment violation of individual rights.

  4. Shawn Carter


    I won't pretend I have any idea how the Court will rule when that matter eventually comes before them or how the Court may even be constituted by then.

    I do like writing what I hope are thought-provoking posts about. topics I have a genuine interest in.

    I am always glad when you chime in with your wisdom.

    I sometimes learn more from your responses than from the research I conduct constructing the posts.

    I hope we can continue these exchanges.

  5. Shawn Carter


    Although if States are required to recognize firearm permits from other states, they likely will be forced to recognize same-sex marriages originated in other states, as well.

  6. Anonymous

    We have so many important issues facing every state and our nation as a whole. I (as a conservative) simply do not understand why conservatives continue to try to legislate this issue. Who a person marries is simply none of our business.

    State courts should follow the SCOTUS lead and start ruling that a marriage between two consenting adults is legal. It should not require special legislation to recognize this fact in the individual states.

    Shawn — need to do an analysis of the recent Pentagon opening of combat roles to women (maybe you or Helen). It took too long to get to that point just like it took too long to get rid of the gay ban in the military. Watched the recent hearings in front of the Senate dealing with sexual harassment/assaults in the military and it struck me as interesting that you had a bunch of old men testifying on a female-centric issue. They did not even bother to bring a senior female military leader with them to help in the discussions.

  7. BrianTH

    What defenders of Section 2 and state mini-DOMAs are relying on is that there is a precedent for states refusing to recognize marriages formed in other states, when they are violations of their public policies. A classic example is varying public policies on incest as applied to first-cousin marriages.

    In theory all that could work to save Section 2 and the mini-DOMAs, but the problem is the federal government (in a Section 2 case) or the state government (in a mini-DOMA case) would have to explain exactly what public policy was furthered by recognizing straight marriages formed in the original state but not gay marriages formed in that state. And Justice Kennedy's reasoning in Windsor (and indeed Romer and Lawrence) would seem to suggest that no such policy is likely to survive scrutiny under the Fifth/Fourteenth Amendments (barring a new argument that has yet to be uncovered).

  8. Anonymous

    This will be a relatively easy full faith and credit argument. The Supreme Court appropriately side stepped the standing argument in California because quite frankly the appellants did not have standing. The SCOTUS knew what it was doing. The next married couple that moves to another state and seeks to have the same sex marriage recognized by the host state will appeal and the full faith and credit will trump and carry the day.

  9. BrianTH

    In marital law, the Full Faith and Credit clause has been applied to divorces and other things that could be considered court judgments, but not marriages themselves. Accordingly, the litigants in such a case would likely need to make a 5th/14th Amendment argument (citing Romer, Lawrence, and Windsor).


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