The Defense of
Running head: THE DEFENSE OF MARRIAGE ACT
The Defense of Marriage Act Should Be Overruled by the U.S. Supreme Court: Analysis of
Equal Protection and Full Faith and Credit Clauses of the U.S. Constitution
Cornell College
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Abstract
This paper seeks to analyze the 1996 Defense of Marriage Act (DOMA) under the purview of
constitutional law. It demonstrates how DOMA should be overruled on grounds of
constitutionality. This is seen through both Equal Protection and Full Faith and Credit analysis. I
explore how precedent evokes a substantive argument for overruling DOMA, as well as issues
that would arise from doing so and how they should be addressed. Additionally, strict scrutiny
review is exercised to demonstrate the unconstitutionality of DOMA. The impact of court cases
such as Varnum v. Brien are examined and issues of inconsistency are analyzed. Public health
analysis also leads to the conclusion that same-sex marriage should be legalized.
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The Defense of Marriage Act Should Be Overruled by the U.S. Supreme Court: Analysis of
Equal Protection and Full Faith and Credit Clauses of the U.S. Constitution
I believe all Americans, no matter their race, no matter their sex, no matter their sexual
orientation, should have that same freedom to marry. Government has no business
imposing some people's religious beliefs over others. Especially if it denies people's civil
rights. I am still not a political person, but I am proud that Richard's and my name is on a
court case that can help reinforce the love, the commitment, the fairness, and the family
that so many people, black or white, young or old, gay or straight seek in life. I support
the freedom to marry for all. That's what Loving, and loving, are all about. –Mildred
Loving, June 12, 2007.
In light of that statement regarding same-sex marriage, we see that this contentious debate is not
a new one. The U.S. Supreme Court first addressed the institution of marriage in Griswold v.
Connecticut (1965), in which they posited:
We deal with a right of privacy older than the Bill of Rights - older than our political
parties, older than our school system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of being sacred. It is an association
that promotes a way of life, not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a
purpose as any involved in our prior decisions.
Indeed, marriage as an institution reaches far back into time, beyond the duration of our own
government and U.S. Constitution. As one of the most frequently contested issues in the United
States today, marriage carries with it a plethora of issues and conflicts. Clearly Griswold was not
about same-sex marriage, and neither was a subsequent case, Loving v. Virginia (1967). In
Loving (1967), the U.S. Supreme Court articulated:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and
survival....To deny this fundamental freedom on so unsupportable a basis as the racial
classifications embodied in these statutes, classifications so directly subversive of the
principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the
State's citizens of liberty without due process of law. The Fourteenth Amendment
requires that the freedom of choice to marry not be restricted by invidious racial
discrimination. Under our Constitution, the freedom to marry, or not marry, a person of
another race resides with the individual and cannot be infringed by the State.
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The combination of these two cases established the right to marry as a fundamental right. They
established this using equal protection analysis. This is stated in the Constitution, guaranteed in
the Fourteenth Amendment, “No State shall…nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the law” (U.S. Const., amend. XIV, § 1). It is in the spirit of that dictumthat
we come to the issue at hand: The issue of same-sex marriage.
There has been no U.S. Supreme Court decision regarding same-sex marriage, nor has
there been any constitutional amendment either prohibiting or allowing such an institution.
However, in 1996, President Bill Clinton signed into law the Defense of Marriage Act (DOMA).
This Act was passed in light of a pending decision by the Hawaii Supreme Court. In effect the
Act nullifies federal recognition of State issued marriage licenses between same-sex partners and
also instructs States that they are not required to recognize such marriage as would be provided
under the Full Faith and Credit Clause of the U.S. Constitution. It is my conclusion that the U.S.
Supreme Court should declare the 1996 Defense of Marriage Act unconstitutional based on
analysis with respect to the Full Faith and Credit and Equal Protection Clauses of the U.S.
Constitution.
The following paragraphs will discuss a myriad of reasons why DOMA should be
overruled based on a variety of grounds including but not limited to full faith and credit, equal
protection, public interest, and judicial consensus. DOMA is a relatively new piece of legislation,
having been passed only about a decade ago. DOMA came about as a result of the case of Baehr
v. Miike (1996). On December 17, 1990, Ninia Baehr et al. filed suit after having civil marriage
licenses denied to them on the basis that they were all same-sex couples. Judgment in favor of
the defendant was entered on October 1, 1991, and the plaintiffs appealed to the Supreme Court
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of Hawaii. The Supreme Court of Hawaii reversed the lower court’s decision in 1993 and
declared that under strict scrutiny analysis a statute prohibiting marriage on same-sex grounds
was unconstitutional. The case was remanded to the lower court which was ordered not to bar
issuance of marriage licenses on basis of sex. The Hawaii legislature, in response, passed an
amendment to the Hawaii Constitution on April 29, 1997, which reserved marriage to opposite
sex couples. Upon appeal of the case once more to the Supreme Court of Hawaii by the
defendant, the Court reversed its decision on the basis of the new amendment therefore
invalidating the plaintiffs’ complaint (Baehr v. Miike, 1996).
The 1996 Defense of Marriage Act
Public Law 104-199, otherwise known as the Defense of Marriage Act, was enacted by
the 104th Congress on Sept. 21, 1996. This Act is actually quite brief and revises Title 28 of the
United States Code so that:
No State, territory or possession of the United States, or Indian tribe, shall be required to
give effect to any public act, record, or judicial proceeding of any other State, territory,
possession, or tribe respecting a relationship between persons of the same-sex that is
treated as a marriage under the laws of any other State, territory, possession, or tribe, or a
right to claim arising from such relationship.
This in effect supersedes and/or preempts the Full Faith and Credit Clause of the U.S.
Constitution, effectively allowing a State to refuse to recognize a marriage license from another
state if it should so choose. The guiding principle behind such a change is because otherwise
once a state like Massachusetts recognizes same-sex marriage, essentially all of the other 49
states are required to do so by the Full Faith and Credit Clause of the U.S. Constitution, which
holds that, “Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof”
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(U.S. Const., art. IV, § 1). In order to nullify such constitutionally mandated recognition of
marriage, the Act was passed.
In addition to the above provision, the Act also redefines on the national level what a
marriage is. The Act amends Title 1 of the U.S. Code so that:
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 to only a person of the opposite sex who is a
husband or wife” (Defense of Marriage Act, 1996).
This effectively achieves two objectives. First, it limits marriage at the federal level to that
between a man and a woman, and secondly it ensures that states are not compelled to recognize
any same-sex marriage under the above definition due to transference under Full Faith and Credit.
Without getting into deep legal arguments about the legality or underlying issues with
DOMA, a surface level analysis reveals several key issues which are immediately important for
purposes of analysis. First, that such an Act of Congress inherently places same-sex marriage in
the national and/or federal view. Secondly, that such an Act clearly seeks to prevent an obvious
outcome: same-sex marriage. Third, that such an Act incontrovertibly seeks to apply the rule of
law to a discrete group of persons: homosexuals. Fourth, that the Act, while not making samesex marriage illegal outright, certainly seeks to place an obstacle in the way of those seeking
such a union. Finally, as Theresa Goulde, J.D. Candidate at Tulane University Law School
observes, “Congress enacted DOMA both to preserve the heterosexual definition of marriage and
to advance the government’s interest in defending traditional, Judeo-Christian moral norms”
(Goulde, 2005, p. 197).
Judicial precedent effects a substantive argument in favor of same-sex marriage.
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Jurisprudentially speaking, there is a clear argument to be made in favor of same-sex
marriage. Examination of the case law provides a clear and concise legal framework for an
argument in favor of same-sex marriage. The most obvious precedent is Loving v. Virginia
(1967). This is the key case in which equal protection of the law is extended to prevent
discriminatory exclusion of marriage based on race. The case involves a white male who married
a black female in Washington, D.C., but then elected to return to Virginia to reside. They were
then convicted under Virginia statute for violating the anti-miscegenation laws within the
Virginia Code. The Court ruled that the law was unconstitutional under purview of the Equal
Protection Clause of the Fourteenth Amendment. Even though the statute applied equally to
whites and blacks, the U.S. Supreme Court still struck it down on the ground that it was
forbidden to deny the right to marry, which the Court articulated was a fundamental right, based
solely on classifications.
The decision preceding Loving is that of Griswold v. Connecticut (1965). In Griswold
(1965), a statute held that it was a crime to use “any drug, medicinal article or instrument for
purpose of preventing conception,” and Estelle Griswold and Lee Buxton, who dispensed
information, instruction and medical advice to married couples about birth control, were charged
for violating that statute as an accessory to that offense. The Supreme Court articulated that
“specific guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance.” It is these “penumbras” which are then
explained as “zones of privacy” later invoked in Roe v. Wade (1973). In Griswold (1965), the
Court further concluded, “Such a law cannot stand in light of the familiar principle, so often
applied by the Court, that a ‘governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means which sweep
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unnecessarily broadly and thereby invade the area of protected freedoms’ NAACP v. Alabama
377 U.S. 288, 307.”
Taken together, these two cases establish as fundamental judicial principle that marriage
is in fact a fundamental right, which cannot be abridged by state statute regarding race nor
invaded by governmental interests involving contraception. This establishes marriage as a
fundamental right and a protected institution under constitutional law. There are two more cases
which require attention. The first of these is merely to act as a reference point for the second.
These cases are Bowers v. Hardwick (1986) and Lawrence v. Texas (2003), respectively.
In Bowers (1986), two men were charged with violating a Georgia statute prohibiting consensual
sodomy, which they had obviously engaged in. The Court, rejecting the plaintiffs’ argument that
their constitutional rights to privacy and association were violated by the statue, upheld the law.
The Court held that, in blatant disregard to the constitutional issues at hand, there was no
constitutional right to consensual homosexual sodomy. This ruling was then completely
overturned nearly two decades later in Lawrence (2003).
While also about sodomy statutes, Lawrence (2003) overruled Bowers (1986) because
“its continuance as precedent demeaned the lives of homosexual persons” (Lawrence v.
Texas, 2003). The Court, citing Casey, asserted that “Our obligation is to define the liberty of all,
not to mandate our own moral code,” and “It is a promise of the Constitution that there is a realm
of personal liberty which the government may not enter” (Lawrence v. Texas, 2003). It also held
that “When homosexual conduct is made criminal by the law of the State, that declaration in and
of itself is an invitation to subject homosexual persons to discrimination both in the public and
the private spheres” (Lawrence v. Texas, 2003). The final holding and directive of the Supreme
Court in Lawrence was very clear: “The petitioners are entitled to respect for their private lives.
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The State cannot demean their existence or control their destiny by making their private sexual
conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to
engage in their conduct without intervention of the government.” (Lawrence v. Texas, 2003). The
Court succinctly upholds both privacy and a right to due process simultaneously as they apply it
in Lawrence.
The final case of relevance is that of Romer v. Evans (1996). In this case the Court struck
down Amendment 2 to the Colorado Constitution, an amendment which sought to annul
antidiscrimination regulations adopted by the cities of Aspen, Boulder and Denver prohibiting
private and public discrimination on the basis of sexual orientation. In the Opinion of the Court,
Justice Kennedy affirms that “A law declaring that in general it shall be more difficult for one
group of citizens than for all others to seek aid from the government it itself a denial of equal of
protection of the laws in the most literal sense” (Romer v. Evans, 1996). Furthermore, the Court
argued that Amendment 2 failed the rational basis standard of review: “We conclude that, in
addition to the far reaching deficiencies of Amendment 2 that we have noted, the principles it
offends, in another sense, are conventional and venerable; a law must bear a rational relationship
to a legitimate governmental purpose, and Amendment 2 does not” (Romer v. Evans, 1996). The
Opinion culminates in the blatantly direct denouncement of Amendment 2 as essentially absurd
and unacceptable. The Court held that “It [Amendment 2] is a status-based enactment divorced
from any factual context from which we could discern a relationship to legitimate state interests;
it is a classification of persons undertaken for its own sake, something the Equal Protection
Clause does not permit” (Romer v. Evans, 1996). In this case, the Court has extended further the
umbrella of equal protection that had been held over race and sex to the category of sexual
orientation. This case necessarily includes gays and lesbians as a suspect class, deserving of
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equal protection under the law. This massive amount of case law will all become highly relevant
momentarily.
Based on the case law we can see that there are several fundamental premises established
by the Court. First, that marriage is a fundamental right. Second, the right to marriage cannot be
infringed upon by a variety of statutes and provisions, regardless of governmental interest in
things like child welfare. Indeed, even incarceration does not preclude the right to marry as seen
in the case of Turner v. Safley (1987). Third, the “zones of privacy” articulated in Griswold
(1965) extend not only to protect married couples, but also extend over homosexual conduct in
the privacy of one’s own home. The Court necessarily, in Lawrence (2003), holds that the law
cannot be used as a weapon of the majority against homosexuals and their conduct. Or as Justice
O’Connor so blithely puts it, that moral disapproval is not a legitimate state interest to justify a
criminal statute against a class of citizens under rational basis review (See O’Connor, J.,
concurring, Lawrence v. Texas, 2003). Finally, that equal protection applies to sexually oriented
minorities as much as it does to historical minorities and disadvantaged groups such as women.
This all becomes highly relevant when taken together as a whole.
If marriage is so fundamental, and homosexual conduct is neither punishable nor
discriminable under law, then what barrier is there to same-sex marriage? My answer is none. It
logically and jurisprudentially follows from the case law above that if marriage is a fundamental
right, and if we cannot discriminate against homosexuals or their conduct, they should be
allowed to marry each other. The Court has already extended the penumbra of privacy, as it were,
to protect homosexuals under equal protection, as can be clearly seen from the case law.
Analysis of the judicial precedent and case law invites one to look at the big picture and see how
it is rather apparent that same-sex marriage is not as farfetched as some people would believe. It
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seems as though moral opinion of the majority is the only reason which inhibits a jurisprudence
that would allow same-sex marriage. As above, this is clearly insufficient within the law.
Objecting to same-sex marriage on purely “moral” or religious grounds raises questions
that the judiciary should not address.
As articulated above, a moral argument for exclusion of homosexuals from the social and legal,
not religious institution of marriage, is insufficient at best. Clearly, religious institutions may
regulate or prohibit marriage within their purview as they please. However, there are still
individuals and groups that protest such allowance for same-sex marriage because it offends
religion. Case in point here is that since there is a separation between church and state, such an
argument is not only insufficient, but should be disregarded in its entirety by the judiciary. This
is due to the fact that adjudication on purely religious or majority grounds is not only
unacceptable but undesirable. Morality, while it may play a significant part in law, especially
criminal law, is not sufficient for justification of exclusion of homosexuals from the institution of
marriage.
The Superior Court of Washington provides jurisprudential guidance on this very subject
in the case of Andersen v. King County (2006). In the case, Judge William Downing concluded
that the DOMA statute of Washington State could not “survive analysis under the rational basis
standard, and held them violative of the privileges and immunities and due process clauses of the
Washington Constitution” (Anderson v. King County, 2006). Judge Downing also argued that “In
our pluralistic society, in which church and state are kept scrupulously separate, the moral views
of the majority can never provide the sole basis for legislation” (Andersen v. King County, 2006).
He also concluded that “serving tradition, for the sake of tradition alone, is not a compelling state
interest” (Andersen v. King County, 2006). Judge Downing additionally refers us to Justice
O’Connor’s Opinion in Lawrence v. Texas (2003), “Indeed, we have never held that moral
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disapproval, without any other asserted state interest, is a sufficient rationale under the Equal
Protection Clause to justify a law that discriminates among groups of persons.”
Based upon the above jurisprudence, it can be seen how it is not only legally insufficient
for the judiciary to make decisions about same-sex marriage on religious grounds, but that it is
indeed forbidden to do so by the Constitution itself, through application of the First Amendment.
DOMA intrinsically violates the Full Faith and Credit Clause, as well as superseding it
outright, in turn violating the Supremacy Clause.
DOMA is a federal law, and its purpose was and is to prevent States from having to
recognize same-sex marriages issued by other States against their will due to the legitimizing
effect of the Full Faith and Credit Clause, supra. There is, however, a key constitutional issue
with this statute. As a means of overcoming Full Faith and Credit, Congress passed this law, but
it would appear that doing so was unconstitutional. There are two main issues to be raised with
respect to this issue. The first is that of an extension of legislative power forbidden by the
Constitution. The Full Faith and Credit Clause would appear on its face to be an allowance to the
Congress to extend the power, “…And the Congress may by general Laws…” (Const. art. IV, §
1), but providing such a “negative” power as that granted by DOMA is unseemly. As Jennie
Shuki-Kunze, of the Case Western Reserve Law Review writes:
The Clause states that Congress may legislate as to the “effects” of acts, records, and
judicial proceedings of one state in another. However, the Clause confers no power
authorizing Congress to decree one state’s acts, records or proceedings have no effect in
the state of another. While an affirmative legislative power may be supported by the
language of the Clause, it is unlikely that the Framers intended to provide Congress with
a “negative” power under the Clause as well. While the Clause states Congress may
legislate as to the “effect” of one state’s acts or judgments in another, it does not declare
that Congress may give these acts or judgments no effect whatsoever (Shuki-Kunze, 1998,
p.361).
This is truly the issue at hand. A granting of power to nullify the acts of other states would
appear to be in contradiction to the very intent of the Full Faith and Credit Clause. How is the
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power to annul the acts of States consistent with the ideal of recognizing that which is carried out
in other States? I assert that it is not. The purpose of the Full Faith and Credit Clause was “in
order to facilitate state unity and uniformity” (Shuki-Kunze, 1998, p. 361). This is a logically
prudent argument. Without such a guarantee, the entire Constitution bears significantly less
muster, and we would be reduced to a glorified version of the Articles of Confederation. This is
clearly not the purpose or intent of the Framers, nor of the Constitution itself. Ergo, the very
nature of the Full Faith and Credit Clause in its creation is an additive function: It was designed
to allow Congress to expand and expound the powers so described-Not to nullify them entirely,
which is clearly subtractive in nature.
The second issue that arises is more diaphanous and evanescent. The issue is that of
federalism, and the inherent separation of power. It is fairly obvious that marriage and its
regulation is reserved to the States. That fact is not in question. They have made the law,
according to the very text of the Full Faith and Credit Clause itself, to “prescribe the Manner in
which such Acts, Records and Proceedings shall be proved, and the Effect thereof” (Const. art.
IV, § 1). This is also not in doubt. What Congress has done, however, is given its power, the
power to “proscribe…the Effect thereof” (Const. art. IV, § 1) unto the States themselves. Not
only this, but they have given the negative power, the power of nullification, unto the States.
This is a grievous issue. This is not limited to purely legislative actions, however. It also applies
to the judiciary. As set forth over a century ago in Roche v. McDonald (1928):
The Full Faith and Credit Clause requires that the judgment of a state court which had
jurisdiction of the parties and the subject matter, shall be given in the courts of every
other state the same credit, validity, and effect as it has in the state where it was rendered,
and be equally conclusive upon the merits, and that only such defenses as would be good
to a suit thereon in that state can be relied on in the courts of any other state.
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A further argument, although perhaps less substantive and more peripheral, is one of judicial
power in its normative form. The traditional theory of separation of powers holds that the
legislative branch makes the laws, the executive branch enforces the laws, and the judiciary
interprets the laws. Inherent in this is the power of the judiciary, most notably the U.S. Supreme
Court, to declare an act of Congress unconstitutional. That is to say, the Supreme Court can
nullify an act of Congress if it is in violation to the Constitution. It would appear that Congress
has attempted to utilize this power of nullification as its own. If that is not enough, it has further
dug itself into a Constitutional sinkhole by granting that power to the States. It has, in effect,
delegated its power to the States, which was clearly not the intent of the Framers. Otherwise they
would not have included the Tenth Amendment “The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people” (U.S Const., amend X). This clearly marks a separation between the powers of the
States and the federal government. The Framers of the Constitution would have an aneurysm if
they found out that Congress had delegated such power to the States, and the nature of such
power. That is how it would seem at least. It at least raises some interesting questions
surrounding the very nature of DOMA itself, and its facial viability under the Constitution.
In essence, the Full Faith and Credit issues raised above are themselves compounded by
another. This final issue is that of DOMA superseding and/or preempting the Full Faith and
Credit Clause. This is impermissible due to the power of the Supremacy Clause, which holds that
“This Constitution and the Laws of the United States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made, under the Authority of the United States shall be
the supreme Law of the Land” (U.S. Const., art. VI). In essence, all law must give way to the
Constitution if it is conflict to it; i.e. the Constitution is sovereign. It would seem that DOMA
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does this very thing. By seeking to preempt or supersede the Constitution, DOMA intrinsically
violates the Supremacy Clause. Based on this analysis, DOMA should be ruled unconstitutional
as a prima facie case, even disregarding its content. DOMA has substantive issues under Full
Faith and Credit examination and so it remains in contradiction to the constitutional law.
Discrimination against homosexuals by forbidding same-sex marriage inherently creates a
suspect class that is protected under Equal Protection, as established by judicial precedent.
In the vast body of case law, one of the most frequently cited footnotes is number 4 of
United States v. Carolene Products Company (1938), which I will invoke now. In footnote four,
the Supreme Court held that prejudice against discrete and insular minorities is deserving of
strict judicial scrutiny. Strict scrutiny was first applied in Korematsu v. U.S (1944). This
discrete/insular/minority pretest to determine level of scrutiny was later applied to associate strict
scrutiny with racial discrimination and intermediate scrutiny with sex based discrimination.
Homosexuals are clearly a discrete, insular minority. More so, in fact, than even women, who
have been traditionally disadvantaged by our patriarchal society. However, while women are
certainly discrete, they are not a minority statistically speaking, and may or may not be insular
according to the Carolene (1938) definition of that term. Based on this, it would seem apparent
that strict scrutiny is necessarily the judicial standard of review when it comes to sexuallyoriented legislation concerning homosexuals.
Moreover, strict scrutiny requires that there be a “compelling governmental interest,” that
the statue be “narrowly tailored” and that it must use “the least restrictive means” to achieve that
interest, as asserted in Korematsu v. U.S (1944). There is a way to determine if a group is a
“suspect class.” A group is a suspect class if they are: (1) a "discrete" or "insular" minority who
(2) possess an immutable trait, (3) share a history of discrimination, and (4) are powerless to
protect themselves via the political process (United States v. Carolene Products Company, 1938).
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We have already established (1) above, homosexuals possess an immutable trait, namely their
sexual orientation (this is supported by vast amounts of biopsychological research), they
certainly share an obvious history of discrimination, and due to their status as a discrete insular
minority are powerless to protect themselves via the political process. Based on these substantive
criteria, also articulated in footnote four of Carolene, we can clearly conclude that homosexuals
are a suspect class based on judicial precedent. We can also conclude that strict scrutiny is the
standard of judicial review in cases involving homosexuals. Ergo, in a case about same-sex
marriage, the Equal Protection Clause necessarily invokes strict scrutiny, demanding a
compelling governmental interest.
Clearly however, this is not the case. The Defense of Marriage Act explicitly forbids
same-sex marriage recognition. In a court of law, application of strict scrutiny requires a
compelling governmental interest to pass the test. I can see none. What compelling interest is
there, other than tradition, which is not compelling at all? I say none. There is no compelling
interest. If the Supreme Court is going to fairly apply the Equal Protection Clause, which
guarantees us that “No State shall…deny to any person within its jurisdiction the equal
protection of the laws” (U.S. Const., amend. XIV, § 1), then DOMA would seem to fail equal
protection analysis using strict scrutiny. Thus, DOMA should be overturned by the Supreme
Court, in interest of protecting liberty and constitutional rights to equal protection under the law.
Rulings such as Varnum v. Brien create a general inconsistency in judicial case law as well
as public policy which results in discrepancies which the Supreme Court historically has
dealt with, and should do so again.
If we follow the above recommendation to overrule DOMA, we come up with another
issue: Full Faith and Credit would then apply once more so that once one state accepts same-sex
marriage, effectively all states must do so. This is an issue in and of itself. On April 3, 2009, the
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Iowa Supreme Court handed down its (unanimous) decision in the case of Varnum v. Brien
(2009). In this case, the court held that refusing marriage to same-sex couples inherently denied
them equal protection under the law assured by the Iowa Constitution. Citing esteemed Justice
Oliver Wendell Holmes, the court asserts that, “It is revolting to have no better reason for a rule
of law than that so it was laid down in the time of Henry IV. It is still more revolting if the
grounds upon which it was laid down have vanished long since, and the rule simply persists from
blind imitation of the past” (Varnum v. Brien, 2009).
Utilizing an intermediate scrutiny standard, which requires that “a statutory classification
must be substantially related to an important governmental objective” citing Clark v. Jeter,
(1988), the Court held that the Iowa statute defining marriage as a union between a man and a
woman fails the intermediate scrutiny test. Addressing a variety of issues, from religious
objections to “family value” arguments, the Court asserts that it would seem to be that it is
actually in the best interest of the State to allow same-sex marriage, jurisprudence
notwithstanding. Their reasoning is that same-sex couples are allowed to raise children, so it
would be better for their caretakers to be solidly committed and bound to each other through
marriage, forming a “family” which opposition to same-sex marriage argues is actually
diminished by same-sex marriage.
As the Iowa Supreme Court so clearly puts it:
We have a constitutional duty to ensure equal protection of the law. Faithfulness to that
duty requires us to hold Iowa’s marriage statute, Iowa Code section 595.2, violates the
Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty.
If gay and lesbian people must submit to different treatment without an exceedingly
persuasive justification, they are deprived of the benefits of the principle of equal
protection upon which the rule of law is founded (Varnum v. Brien, 2009).
However, the Iowa Supreme Court is not the only court to hold this. This is seen in the case of
Goodridge v. Department of Public Health (2003) in which the Supreme Judicial Court of
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Massachusetts asserted that “the [same-sex] marriage ban worked a deep and scarring hardship
on a very real segment of the community for no rational reason” (Eaton, 2007). Sarah Eaton
(2007) affirms:
After Goodridge, the Massachusetts Senate requested an opinion from the Supreme
Judicial Court of Massachusetts concerning a proposed bill that would limit marriage to
opposite-sex couples, but would create a parallel civil union structure for same-sex
couples. The court concluded that the bill would only “maintain an unconstitutional,
inferior, and discriminatory status for same-sex couples” in violation of the equal
protection and due process guarantees of the Massachusetts Constitution.
These two courts both hold that suppressing same-sex marriage violated equal protection of the
law. It would seem that they both independently came to this conclusion. This raises an
adjudicative dilemma, especially when legislators are passing laws and other courts are handing
down rulings accepting prohibition of same-sex marriage as unconstitutional. First let us look to
another issue before addressing this one.
It is the public policy and public health issue of same-sex marriage. The public health
term I use here is broad in a general sense: I do not mean physiological health. In reference to
public health, I am referring to that asserted by John Culhane, Professor of Law and Director,
Health Law Institute, Widener University School of Law, who discusses the “health (and safety)
of the population as a whole” (Culhane, 2008, p.12). Citing Goodridge, Culhane states “Marriage
is a vital social institution. The exclusive commitment of two individuals to each other…brings
stability to our society” (Culhane, 2008, p. 17). Culhane furthers his analysis by giving statistics
showing that married people: live longer, are less likely to suffer from chronic illness or longterm disability, are less likely to suffer from mental health issues, and make more money. He
also provides a counterargument by providing that “They [studies] also suggest that the major
health benefits found in married couples do not arise between cohabitating partners” (Culhane,
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2008, p. 28). Justice Thurgood Marshall also comments on the family, although he was not
speaking about same-sex marriage when he said, in the case of Zablocki v. Redhail (1978):
It is not surprising that the decision to marry has been placed on the same level of
importance as decisions relating to procreation, childbirth, child rearing, and familial
relationships. As the facts of these cases illustrate, it would make little sense to recognize
a right to privacy with respect to other matters of family life and not with respect to the
decision to enter into a relationship that is the foundation of the family in our society.
However, these two issues create a larger one: Inconsistency. The Supreme Court has
traditionally denied certiorari to cases which it deemed did not possess “ripeness,” that is they
had sufficiently passed through the lower courts and that it is an issue which the Court feels it is
both able and willing to address. The same-sex marriage issue has been percolating for some
time now, and with cases like Varnum v. Brien (2009) being handed down, the time is now.
Allowing for some courts to issue one ruling while other courts issue another does not serve the
interests of jurisprudence, even though these cases deal with State Constitutions, rather than the
federal Constitution. There is still a variety in both the rulings and reasoning of these lower
courts. This variation serves neither the judicial nor public interests in the matter of same –sex
marriage. Discrepancies in case law arising from such decisions have traditionally been dealt
with, and the court should do so again. This will necessarily solve the issue intrinsic to
overruling DOMA and serve both judicial and public health interests.
Conclusion
We have examined a variety of issues surrounding same-sex marriage and DOMA. These
issues include everything from judicial precedent as a matter of jurisprudence to intrinsic issues
of constitutionality. This analysis sought to examine DOMA and provide reasons, judicial and
otherwise, why it should be overruled. These reasons, both individually and cohesively support
my argument for overruling DOMA, and consequently providing a ruling on same-sex marriage
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as a point of law. I think the vast amount of issues I have raised casts DOMA in a light of doubt
that we should jurisprudentially acknowledge, and overrule. It is for these reasons, expounded
above, why I hold that DOMA is unconstitutional, and should be overruled. In the end, however,
we must look at the broader issues here as well. This analysis is certainly about same-sex
marriage. But on a broader context it is about more than that. This case is about giving justice to
a group of citizens who has experienced historical repression at the hands of the government as
well as society. It is also about the rights of gays and lesbians to have equal protection and due
process under the law, the same as all people if our Constitution is to be believed. In the end, the
Supreme Court can assure that “We the People” and “All men (and women, of all races, religions
and sexual orientations) are created equal” are upheld in our society.
In the end, this analysis raises some questions while it in turn seeks to answers others. Is
a Constitutional Amendment against discrimination on the basis of sexual orientation necessary,
as we have done with race and sex? Is it activist of the Court to decide same-sex marriage, or is it
a necessary function of their role as interpreter of the law? These questions may not be answered
anytime soon. We can only hope that the judiciary will see to deliver on its duty to uphold the
law, as articulated in Marbury v. Madison (1803) by Chief Justice John Marshall “It is
emphatically the privilege and duty of the judicial department to say what the law is.” Perhaps,
as with other such issues regarding race and sex, the public themselves will eventually seek to
change the law so that it coincides with public opinion. As enucleated in Varnum v Brien (2009):
We are firmly convinced the exclusion of gay and lesbian people from the institution of
civil marriage does not substantially further any important governmental objective. The
legislature has excluded a historically disfavored class of persons from a supremely
important civil institution without a constitutionally sufficient justification. There is no
material fact, genuinely in dispute, that can affect this determination.
AFFIRMED.
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