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Guest Post: A Quick Guide to Sexual Orientation Law Part II

July 10, 2009

Following up on my previous post, here is part two of the guest post on the Massachusetts challenge to the Defense of Marriage Act (DOMA).  This guest post was written by Mike, a second year law student.

The Defense of Marriage Act was passed in 1996 as a response to a Hawaii Supreme Court decision, which applied strict scrutiny to the sexual orientation class.  As it appeared Hawaii would legalize same-sex marriage, DOMA was intended to shield other states from being forced to recognize Hawaii’s same sex-marriages.  The act allows states to recognize out of state same sex marriages, but definitively notes that states are not forced to.  DOMA also defines “marriage” as reserved for opposite sex couples on the federal level.

Within the federal courts, judges have refused to create precedent on the law, and the Supreme Court has consistently refused to review it–essentially deferring to Congress on the matter.   With President Obama’s known (but slow to act) opposition to the law and Democrats controlling both houses of Congress, this reluctance might be a blessing in disguise.  If the court were to rule on DOMA, with its conservative make up, it could strike a significant blow to gay marriage.  Allowing time to pass before the court addresses DOMA could allow either Congress to repeal the act, or the make-up of the Court to change.

Because of the reluctance of the Court to review DOMA it is unlikely that Massachusetts’ recent lawsuit will ever see the High Court Docket, but just in case, here are the main arguments against it:

Fundamental Liberty Interest
–Marriage has been defined by the court in Loving v. Virginia as “one of the ‘basic civil rights of man,’ fundamental to our very existence.”  An argument could be made that DOMA restricts this right and should be held to a strict scrutiny test.  With the implication in Lawrence that morality is no longer a legitimate government interest, its holding could be extended to wipe out DOMA as unconstitutional.

The Iowa Approach
–Just like in Iowa, where they classified sexual orientation with an intermediate scrutiny, an argument could be made following Lawrence that sexual orientation as a class prompts a higher level of scrutiny and therefore DOMA should be ruled unconstitutional.

Full Faith and Credit
–Article IV Section 1 of the Constitution requires that states recognize, “public acts, records, and judicial proceedings” of the other states.  This would seem to include marriage licenses as it includes other types of licenses and contracts.  DOMA’s wording inherently contradicts this clause of the constitution and is perhaps the most obvious argument against the constitutionality of DOMA.


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