Why the Defense of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors That Determine What the Constitution Requires

By Mark D. Rosen. Full text here.

When Hawaii seemed poised to be the first state in the Union to permit same-sex marriage in the 1990s, Congress passed the Defense of Marriage Act (DOMA). DOMA provides that states need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister states. Though many scholars have argued that DOMA exceeded Congress’s powers, controversies concerning DOMA’s provisions have not yet appeared in the courts because Hawaii did not ultimately legalize same-sex marriage. Claims of DOMA’s unconstitutionality have intensified following the Supreme Court’s recent opinion in Lawrence v. Texas, which struck down state laws that criminalized sodomy. And now that Massachusetts has become the first jurisdiction in the United States to solemnize same-sex marriages, the scenarios DOMA sought to address will certainly arise. Accordingly, this is an opportune time to revisit the question of DOMA’s constitutionality.

This Article argues that DOMA is not unconstitutional—at least not yet. First, the Article shows that Lawrence did not invalidate DOMA. Although Lawrence equipped gay rights activists with some new constitutional principles, the opinion embraces other concepts that opponents of same-sex marriage can deploy. A careful study of the opinion reveals that the Court participated in the ongoing society-wide dialogue concerning gay rights but deliberately left undecided the constitutional status of same-sex marriage. This is a good thing, for there are many benefits to allowing a wide-ranging societal debate to continue and also numerous dangers to the Court ruling prematurely on issues about which citizens are deeply divided and with respect to which societal norms are in a state of flux.

This Article then debunks the many argument scholars proffered even before Lawrence that DOMA unconstitutionally exceeded Congress’s authority. Claims that DOMA violates state sovereignty by interfering with a family-law subject are premised on a mischaracterization of DOMA—the statue does not regulate family law but serves the quintessentially federal function of determining the extraterritorial effect of state law. Arguments that DOMA undermines full faith and credit’s fundamental principle of unifying the country overlook a second animating principle behind full faith and credit with which DOMA is fully consistent: the preservation of meaningfully empowered states. Further, while scholarly critiques have assumed that DOMA authorizes states to deviate from Supreme Court precedent regarding the enforcement of judgments, this Article shows that DOMA actually fills a gap in the Court’s jurisprudence in a manner consistent with precedent. Even if DOMA were inconsistent with Supreme Court precedent, it would still not be unconstitutional, because Congress has authority to legislate full faith and credit rules that vary from those identified in Supreme Court opinions.

DOMA is best understood as congressional participation in the process of defining our country’s constitutional culture. The Court has not yet decided the constitutionality of same-sex marriage, and DOMA reflects the political branches’ contribution, by means of the institutional tools at their disposal, to the process of deciding how America should deal with the incidents of gay life. DOMA’s actual effects on constitutional culture remain to be seen: will it shape societal views, prompt angry opposition, or something else? Certainly, until the Supreme Court takes a definitive position, and perhaps even after, other societal actors (including states and citizens themselves) are entitled to react to Congress’s views on same-sex marriage and thereby participate in the ongoing development of American constitutional culture.