Attack on Doma

JurisdictionUnited States,Federal
CitationVol. 76
Publication year2021

76 Nebraska L. Rev. 924. Attack On DOMA


Sherri L. Toussaint*

Defense of Marriage Act: Isn't It Ironic . . . Don't You Think? A Little Too Ironic?(fn1)

I. Introduction 925
II. Pursuit of Happiness 927
A. Securing the Blessings of Liberty 928
B. Promoting the General Welfare 931
III. History Repeats Itself 934
A. Tradition of Prejudice 935
B. Separate and Not Equal 938
C. Tolerance but Not Equality 944
D. Rights by Consent 946
IV. I Now Pronounce You 948
A. Stranger to Our Laws 949
B. Without Religion 954
C. Criminal 955
D. Threat 958
V. Declaration of War 960
VI. Legitimate Government Purpose? 965
A. Overinclusive and Underinclusive with
Regard to Those Similarly Situated 969
B. No Reasonable Relationship to Objective 970
C. No Legitimate Purpose 972


VII. Conclusion 973


With a rarely matched haste and a calculated display of power, Congress confidently placed its political credibility on the line and passed the Defense of Marriage Act (DOMA).(fn2) DOMA "relaxes" the constitution,(fn3) makes a sacrificial offering of federalism,(fn4) repudiates the separation of powers doctrine,(fn5) and has little or no constitutional authority to support its enactment.(fn6) Nevertheless, Congress determined that the threat of same-gender marriages necessitated such action.(fn7)


DOMA was enacted in response to a 1993 Hawaii Supreme Court decision(fn8) that many feared would result in the legalization of same-gender marriages. Calling this decision the "greatest breakthrough" in the legal assault against marriage, Congress acknowledged that the United States Constitution(fn9) and various legal doctrines(fn10) could allow same-gender couples to travel to Hawaii, get married, and then return home with valid marriage licenses.(fn11) DOMA supporters argued legislation was needed to "combat" this result.(fn12)

DOMA grants to states an exemption from the mandate of the Full Faith and Credit Clause(fn13) so that a state can ignore a same-gender


couple's valid marriage license issued by another state.(fn14) Additionally, DOMA refuses to recognize and denies all federal benefits to any state-created legal marriage rights involving same-gender couples.(fn15) Regardless of whether Hawaii or any other state adopts same-gender marriage laws by legislation, referendum, or judicial decision, DOMA declares that these laws will not be honored.(fn16) Under different circumstances, DOMA would represent an evisceration of political and constitutional principles. It reflects a calculated confidence that sufficient public hostility toward same-gender marriages supports such congressional overreaching and not only will be overlooked, but applauded as a necessary "strategy" to protect Americans from the threat of same-gender marriages.

This Comment examines the efforts of gays and lesbians to obtain marital rights and the resistance these efforts have encountered.(fn17) An examination of the law demonstrates that prohibitions on same-gender marriages are unconstitutional at both the federal and state level, particularly with regard to the principle of equal protection.(fn18)

Part II of this Comment begins with a discussion of the interests that marriage serves for the individual citizen and society in general. This Part makes clear that gay and lesbian couples are similarly situated to heterosexual couples with respect to marriage rights. Then, because most arguments against same-gender marriage focus on history and tradition, Part III offers an alternative view that suggests history and tradition actually advocate recognition of same-gender marriages. History and tradition also illustrate many principles that render bans on same-gender marriages unconstitutional. Part IV discusses the due process and equal protection problems that pervade the law and the role these problems play in bans on same-gender marriages. Part V builds on this discussion by documenting the constitutional problems that surround DOMA, while Part VI analyzes the interests advanced by DOMA. This analysis demonstrates that DOMA conflicts with the interests in marriage, family, and children,


despite DOMA supporters' assertions to the contrary. In the end, DOMA is unconstitutional because it serves as a classification for its own sake and fails to serve a legitimate government purpose.(fn19)


The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.(fn20)

Most Americans seem to agree with the United States Supreme Court that marriage is an essential ingredient for happiness. A 1992 survey reported that seventy-eight percent of senior high school students indicated that a good marriage and family life was an "extremely important" goal.(fn21) Of the fourteen life goals that students were asked to rank, a good marriage and family life ranked as the number one goal overall.(fn22) Similarly, a 1989 survey of adults reported that a happy marriage was again the number one life goal of those polled.(fn23)

A. Securing the Blessing of Liberty

[A]s an American citizen, a law-abiding, taxpaying-major taxpaying-citizen, . . . I should be allowed the same rights, the same pursuit of happiness that every other citizen enjoys. Whatever they want to call it . . . As long as we have the same legal benefits and protections for me, and for my family-my family. That's all.(fn24)

"Marriage is a state conferred legal . . . status,"(fn25) a necessary prerequisite in our society to the formation of a recognized "family."(fn26) Family status can be obtained in only two ways-legally through marriage or adoption or as a result of a blood relationship. Without access to marriage, gays and lesbians are incapable of creating for themselves a "recognized" family unit. Consequently, gays, lesbians, and


the children of gays and lesbians are denied many privileges and protections associated with family membership.(fn27)

No other arrangement, whether by contract or domestic partnership, is capable of producing the same quality of life as the ability to participate in a legally recognized family unit through marriage.(fn28) "`[T]he family unit does not simply co-exist with our constitutional system,' but `is an integral part of it,' for our `political system is superimposed on and presupposes a social system of family units, not just of isolated individuals. No assumption more deeply underlies our society . . . '"(fn29) Despite the compelling nature of a citizen's interests in marriage and family, the law excludes gays and lesbians from this fundamental aspect of human life.

Marriage and family serve a number of functions critical to both individuals and society.(fn30) The government confers numerous benefits and protections on a marriage and a family because of the important and varied role these institutions play in the well-being of individuals and society as a whole. Family units allow individuals to "intertwine their energy and resources to accomplish individual and group goals."(fn31) The family is the central and "primary unit that provides the resources and social support needed to navigate life."(fn32) Family members care for each other and are committed to shared interests.(fn33) Many tasks can be handled more effectively and productively when combined.(fn34) Family units provide stability and permanence in the ordering of a society and provide both individuals and society the greatest potential for prosperity.


The Supreme Court has repeatedly recognized the importance of marriage and family to both individuals and society. In Smith v. Organization of Foster Families,(fn35) the Court recognized the importance of families to individuals in "the emotional attachments that derive from the intimacy of daily association."(fn36) In Griswold v. Connecti-cut,(fn37) the Court acknowledged that the family unit is protected because it contributes so powerfully to the happiness of individuals. Family associations meet the human need for closeness, trust, and love.(fn38) The Griswold Court noted that the decision to marry is protected precisely because marriage "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."(fn39) In Boddie v. Con-necticut,(fn40) the Court emphasized that "marriage involves interests of basic importance in our society."(fn41) Even "[e]mployers depend on families to give the rest, shelter, emotional support and other maintenance of human capital that will motivate workers and make them productive."(fn42)

For individuals, marriage and family status convey a full range of rights, benefits, and protections, including financial subsidies such as tax credits, the ability to share resources such as health insurance and social security or pension benefits, and economies of scale. In turn, these resources promote economic and emotional security and stability for family members. Within a legally recognized family, individuals are capable of drawing resources into the family as a unit, and these resources often can survive changes in the status of individual members. In the event one individual loses some protection, the family unit can rely on resources from another individual family member to provide security and stability.

Marriage also facilitates the acquisition and sharing of wealth. Property can be acquired and shared without tax consequences, and shared property, like shared resources, can be used more efficiently and productively.(fn43) Additionally, marriage is capable of protecting the assets that individuals have acquired together. Assets acquired by either member of the marriage become part of the family's combined resources until no eligible member of the family remains...

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