Same-Sex Marriage and Its Constitutional Significance

Winston King
final draft
6,915 words
May 3, 2011

Introduction

When the Hawaii Supreme Court in 1993 rendered their opinion in the case, Baehr v. Lewin, it set in

motion a cavalcade of court and legislative action that has forced both state and federal governments to

confront a multitude of legal issues. 1 The items at issue involve family law, property law, inheritances,

among other issues germane to traditional concepts of marriage. All have established and tested

parameters in both case law and legislative action. The extension of full marriage rights to couples of

the same sex will extensively alter these legal constructs. Alteration of legal constructs will also

redefine social and political concepts of jurisprudence.

Baehr involved a complaint that arose when two women applied for a marriage license in

Hawaii. The state refused to issue the license. Nina Baehr sued the state for illegal gender-based

discrimination. The Hawaii Supreme Court's decision yielded two surprising points. First, the court

agreed that Baehr's case had merit in that barring such licenses amounts to sexual discrimination. The

court's second point forces the state to make a compelling reason for barring the issuance of marriage

licenses to same-sex couples. The court effectively employed the “legitimate governmental interest”

judicial standard.2 That idea remains a common thread in similar cases.

From the 1993 Hawaii Supreme Court case, we begin to approach this analysis from a single

vantage point. How does the state have a compelling interest in barring two people of the same gender

1 Baehr v. Lewin, 585 (Haw. 1993)

2 USDA v. Moreno (1973). A “legitimate governmental interest” is at the heart of the matter in this case. The case involved
individuals whose food stamps were cut off because they cohabited with persons to whom they were not related. The
Supreme Court stated in its opinion that this USDA policy violated due process rights. The majority opinion also stated
that there was no rational basis for the practice.

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from entering into an agreement that would bestow the rights and privileges commonly associated with

a marriage contract? The arguments against same-gender marriage when approached from this

perspective become difficult to defend. Yet, many mechanisms have been employed in writing anti-

same-sex marriage legislation to confound legal assaults. Marriage's historically legal framework limits

the federal government's involvement in the institution, instead deferring to state authority over rules.

Part I of this body of research will explore the evolution of same-sex marriage legislation and

litigation. I will sift through elements of politics that have been disguised as public policy.

Part II examines how DOMA's supporters mount both a legal and rhetorical defense of the

statute. This will examine conservative social policy positions.

Part III draws parallels between same-sex marriage and the civil rights movement of fifty years

ago. This research will compare today's arguments with historically similar cases that shed light on how

marriage status has either been denied, granted or augmented by the courts and through legislative

action. This research will consider how these historical cases connect to DOMA and its accompanying

constitutional components.

Part IV will conclude this work with consideration of the rapidly evolving conditions in

prominent contemporary cases where attorneys general have declined to defend both DOMA and

Proposition 8 in court. We will also look at significant constitutional issues that must be resolved such

as the federal government's deference toward the states in marriage policy. We will examine the current

state of these cases as and consider the likelihood that DOMA will be found unconstitutional.

I. A Summary of Marriage Litigation and Legislation from 1993 to the Present

Baehr v. Lewin (1993) established a fundamental element of any argument concerning same-sex

marriage. The state must show a compelling reason why same-sex couples were not able to marry

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under the laws of the state constitution. The majority opinion of the court says that, “The Hawaii

Constitution mandates, in article I, section 3, that:

"[e]quality of rights under the law shall not be denied or abridged by the
State on account of sex." It also mandates, in article I, section 5, that
"[n]o person shall be ... denied the equal protection of the laws, ... or be
discriminated against in the exercise thereof because of ... sex[.]" Thus,
any State action that discriminates *585 against a person because of his or
her "sex" is subject to strict scrutiny.” 3

The gender factor in 1993 elevated the profile of this case to the level at which the state required great

scrutiny of the matter. In other words, the institution of marriage with all its rights, benefits and

privileges has become a civil rights issue. The majority opinion of the Hawaii court deferred to

standards established through nearly fifty years of U.S. Supreme Court decisions that considered

marriage a fundamental civil right. 4

Consider the federal rulings on related cases and the rational basis test catapults this issue to the

federal level.5 'Rationality' is a recurring factor as we will see in subsequent state court cases. While

this factor applies in shaping the court's opinion in deciding either the constitutionality or the purpose

of any statute, the mention of federal precedent as a defense of same-sex marriage led directly to states

adopting their own mini-DOMAs and helped to fashion the 1996 federal law. 6

A. How DOMA Was Created

When the ramifications of Baehr were only beginning to be understood, the matter of same-sex

marriage was of the highest importance to the Utah legislature. Governor Mike Leavitt in 1995 signed

3 Baehr v. Lewin, 585 (Haw. 1993) Here the court raises the issues addressed in Loving v. Virginia (1967) on both equal
protection and due process grounds.
4 Ibid., 23 The most prominent cases remain Meyer v. Nebraska (1923), Loving v. Virginia (1967), USDA v. Moreno
(1973) and Zablocki v. Redhail (1978). In each case, the USSC court defined marriage as a “fundamental liberty”
protected by the Fourteenth Amendment. These cases are not discussed individually and in depth in this research.
However, they nonetheless are formative to the prominent cases mentioned here.
5 Ibid., 19
6 Koppelman, Andrew, “DOMA, Romer and Rationality” (July 29, 2010), Page 5. Drake Law Review, Forthcoming;
Northwestern Public Law Research Paper No. 10-29. Available at SSRN: http://ssrn.com/abstract=1650687

3
into law the first DOMA-style statute that takes direct aim at the Full Faith and Credit Clause of Article

Four in the U.S. Constitution. We will discuss how the statute connects to specific aspects of the federal

constitution in the next section. The most important element to take away from this event remains that

same-sex marriage was already prohibited under Utah state law. The bill that Leavitt signed barred any

recognition in Utah of a same-sex marriage contract that may be imported from a state that does allow

this union.

This is the basis of DOMA. Just as the Utah legislature was afraid of what had happened in

Hawaii would be visited upon their state, the United States Congress in 1996 was also afraid of what

this decision in Hawaii might imply for the whole of the nation. It is fair to say that a presidential

election year offered an opportunity to interject a heated political issue such as “gay marriage” as a

campaign item. Aside from the political drama, DOMA has two major components.

B. DOMA's Provenance

First, DOMA allows a state to choose whether or not if they wish to acknowledge same-sex

unions. There is no federal requirement here for the states to observe any marriage outside the strictly

defined relationship contained inside this bill. This provision receives a great deal of attention in the

way it isolates a certain segment of the population, namely homosexuals, from exclusion of state laws

and protections that extend to the aforementioned categories of family law, property law, inheritances

and tax benefits if the state so chooses.

The second prominent aspect of DOMA has become the subject of lawsuits that now sit on the

threshold of the federal court system. Under DOMA, marriage is defined as uniquely that of one man

and one woman. It goes further to include the word 'marriage' which implies significance in terms of

federal employee benefits that may be granted to some domestic partnerships, but not all. The

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exclusionary aspect of this language brings to mind the “separate but equal” legal classification that

existed more than half a century ago, eventually undone with Brown v. Board of Education (1954).

C. A Swarm of Amendments and Litigation

Romer v. Evans (1996) is the first time that a case relating to rights abridged on the basis of

homosexuality has risen to the U.S. Supreme Court.7 It is worth mentioning here that Bowers v.

Hardwick bears some similarity to Romer but fails to qualify on the standard claim of discrimination

based on sexual orientation.8 This case emerged from Colorado when the state constitution was

amended to include the language that prohibited state and local governments from enacting any laws

that would protect the civil rights of gays, lesbians and bisexuals based on their sexual orientation.

The Supreme Court decided the case in a 6-3 vote, stating that the state could not single out a

specific group of people under circumstances in which the law is not “rationally related to a legitimate

governmental interest.” 9 Discrimination against a “politically unpopular group,” the court decided, is

anathema to the majority's interpretation of the Fourteenth Amendment. 10 The rational basis test utilized

in successive court decisions had clearly dealt a setback to proponents of DOMA.

Nebraska followed a similar course as the state of Colorado in November of 2000 and stands

today as the second state to have an amendment designed to discriminate against same-sex couples

knocked down in the federal district court, however later revived at the circuit court level. The

amendment, listed as Initiative 416, was approved by 70% of voters. The language reads:

"Only marriage between a man and a woman shall be valid or recognized

7 Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996)
8 Bowers v. Hardwick, 478 U.S. 186 (1986) This Supreme Court case originated from Georgia and questioned the
legitimacy of a statute that criminalized sodomy. While the case involved the interest of a gay couple, it did not relate
directly to equal protection principles as the law in question also applied to heterosexual couples.
9 Koppelman, Andrew, “DOMA, Romer and Rationality” (July 29, 2010), Page 5. Drake Law Review, Forthcoming;
Northwestern Public Law Research Paper No. 10-29. Available at SSRN: http://ssrn.com/abstract=1650687
Koppelman is quoting from a U.S. Supreme court decision in the case of New Orleans v. Dukes, 427 U.S. 297
(1976). The decision relied heavily on the Equal Protection clause of the Constitution. The New Orleans v. Dukes
decision relied partly on an earlier Supreme Court case, USDA v. Moreno (1973). From this case decision is where we
first find the language, “legitimate governmental interest.”
10 Ibid., 5

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 in Nebraska. The uniting of two persons of the same sex in a civil union,
domestic partnership or other similar same-sex relationship shall not be
valid or recognized in Nebraska."11

The second sentence proved to be the most controversial element. The language renders the couples

“legal strangers.”12 The law was rendered null under equal protection reasons when appealed to the

U.S. District Court for the District of Nebraska. The case was then appealed to the 8 th Circuit Court of

Appeals. The opinion of the 8th Circuit Court in a three judge panel ruled the amendment does not

violate the equal protection clause of the Constitution. It remains in effect today.

It is important to note that Nebraska's ballot initiative offers comments from those who support

the measure and those who oppose it. By this time, DOMA supporters are fully cognizant of the Full

Faith and Credit Clause of the Constitution. This appeal comes from the voter pamphlet issued from the

Nebraska Secretary of State's office:

It has always been implied that marriage is a union between a man and
woman. Now it’s imperative to define it as such. The “full faith and
credit” clause of the US Constitution allows for one state’s marriages to
be recognized in another. In the event that another state legalizes same-
sex marriages, Nebraska same-sex couples could get married there,
return, and want the union recognized in Nebraska.
Congress gave states the ability to determine public policy
regarding marriage through the 1996 Defense of Marriage Act. Thirty-
three states have defined marriage. If Nebraska doesn’t, there’s a risk that
another state could determine Nebraska’s policy on this issue. 13

The assertion in this pamphlet is not entirely accurate. The Jim Crow era brought, if nothing else, value

in understanding how state laws concerning marriage work within the federalist framework. The law

adapted to circumstances that grew from interracial marriage, however rare during this age, that still

factor into court decisions. Among them is the concept of evasive marriages in which two people

11 Moore, Scott, “Informational Pamphlet on the Initiative Measures Appearing on the 2000 General Election Ballot”
(November 2000). Nebraska Secretary of State Office. Last accessed on April 23, 2011,
http://www.sos.state.ne.us/elec/prev_elec/2000/pdf/info_pamphlet.pdf
12 Koppelman, Andrew, “DOMA, Romer and Rationality” (July 29, 2010). Drake Law Review, Forthcoming;
Northwestern Public Law Research Paper No. 10-29. Available at SSRN: http://ssrn.com/abstract=1650687
13 Moore, Scott, “Informational Pamphlet on the Initiative Measures Appearing on the 2000 General Election Ballot”
(November 2000). Nebraska Secretary of State Office. Last accessed on April 23, 2011,
http://www.sos.state.ne.us/elec/prev_elec/2000/pdf/info_pamphlet.pdf

6
venture outside their state to evade local marriage laws. The couple then returns to their home state

with the expectation to have their marriage contract honored locally. 14 This contract would be

considered invalid if it can be proven that the couple's motivation for crossing into another state to

marry was solely to evade state law. While the Jim Crow era offers some understanding of current

marriage laws of varying legal controversy, the discriminatory aspects of this bygone era have found a

new application. Here we find the separation between universally accepted judicial standards and social

wedge politics.

With impetus at the federal level, other states vigorously introduced a raft of referenda, laws and

constitutional amendments fixed on defining marriage as that being a “legal union between one man

and one woman as husband and wife.”15 The federal DOMA bill had been so cleverly designed as to

offer states considerable latitude in crafting laws that would draw upon the politically popular states

rights aspect of the federal statute. Combined with the common convention concerning evasive

marriages then we can see how same-sex marriage opponents participated in legislative overkill.

A positive legislative breakthrough for same-sex marriage advocates arrived with a Vermont

Supreme Court decision in 1999. The court's decision bears a striking resemblance to Hawaii's

Supreme Court decision in Baehr in that the court upholds the rights of same-sex couples to marry. The

similarity rests with the court's reliance on the legislature to determine how to provide rights and

benefits. These rights were realized next year when the legislature, with Governor Howard Dean's

signature, granted full marriage rights with a 'civil unions' law. The change in wording from 'marriage'

to 'civil union' carries great significance.

The term “civil union” was instrumental in separating the idea of same-sex marriage from the

religious connotations attached to the word 'marriage'. While the legal effect of Vermont's law was the

14 Koppelman, Andrew, “Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges” (June
2005), University of Pennsylvania Law Review, Vol. 153, No. 6
15 Defense of Marriage Act, Pub. L. 104-199; 110 Stat. 2419 (1996); codified at 1 U.S.C. § 7 (2006)

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same as traditional marriage at the state level, the change in wording afforded advocates across the

nation a new tool to pursue a similar goal. Semantics also had the effect of diminishing the sexual

aspect of their cause. The terminology altered the popular perception that 'gay people' or 'homosexuals'

would be allowed to marry. This change in terminology offered same-sex marriage advocates the

ability to frame their agenda in purely legal terms. The desired effect was to grant legal force to

committed adult relationships.

Momentum to create that legal acknowledgement of same-sex unions gathered strength in

November of 2003. The Massachusetts Supreme Court ruled that equal marriage rights are guaranteed

under the state constitution. This decision was reaffirmed the next year when the court said that state

law would provide equal protection under 'marriage rights'. The court used words in its opinion that

effectively perforated the rhetorical barrier between the religious and secular concept of a marriage

contract. This opinion enflamed political rhetoric in an already inflammatory presidential election year.

The emotional response drove many states to adopt ballot initiatives that would ban same-sex marriage

through a constitutional amendment. Twelve states in 2004 amended their constitutions in this way.

II. DOMA's Defense

There are basic psychological elements used to defend DOMA. The opposition to same-sex

marriage tends to argue the case on three main points. First, there is the procreative argument. The

assertion is that marriage has, at its core, the mission to procreate. This argument obviously falls apart

in that no legislative act currently stands in the way of a couple getting married when one is either

biologically incapable of producing children or the couple does not wish to procreate.

This is a central idea in an opinion piece from Chuck Donovan of the Heritage Foundation.

Here he outlines the basis for defending DOMA:

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 Of all the reasons why the Obama Administration’s haphazard approach
to DOMA is bad, none is more distressing than the belief, asserted
breezily in Attorney General Holder’s statement today, that the argument
for marriage as a path to “procreational responsibility” can be
“disavowed” and ignored by the courts. The implications of such a
statement for public policy are staggering. More than a package of
government benefits is at stake. More than a line item on passport
applications is at issue. What is at stake is the whole task of society to
ensure that as many children as possible are raised by their mothers and
fathers.
The consequences of failure are staggering, and the contemporary
United States, like so many other Western nations, is seeing those
consequences firsthand. The effects of broken families are statistically
significant across category after category – youth crime, child poverty,
educational attainment, and adult mental health in the next generation.
For taxpayers, the costs of family dissolution and, increasingly, the failure
of families to form are distressingly high and growing. It would be
irrational not to privilege marriage for the sake of these concerns. 16

Mr. Donovan provides links to various websites that provide statistical information about intact and

broken families. Yet, information about marriage between same-sex partners is difficult to find just as

corollaries between modern scientific data and his assertions.

Secondly, there is the 'slippery slope' argument. This argument is based on the question of

'where does it end?' in an objection alluding to bigamous and polygamous unions. This also falls apart

when one weighs the central arguments made for same-sex unions. The overarching goal of this

litigation is to acquire legal weight to a committed couple's relationship. The scope of same-sex

marriage proponents' ambition remains tightly focused.

Third is the 'fear of validation argument' in which same-sex unions would be valid in one state

and thus valid in all states. The Defense of Marriage Act is one circumstance in which Congress

attempts to limit the Full Faith and Credit Clause of the Constitution 17.

The invocation of states rights remains one of the more clever elements of DOMA. This federal
16 Donovan, Chuck, February 23, 2011, “Time for a Real Defense of DOMA” (Accessed April 25, 2011),
http://blog.heritage.org/2011/02/23/time-for-a-real-defense-of-doma/
17 Johnson, Julie L.B., "The Meaning of "General Laws": The Extent of Congress's Power under the Full Faith and Credit
Clause and the Constitutionality of the Defense of Marriage Act," University of Pennsylvania Law Review, Vol. 145, No. 6
(Jun., 1997), pp. 1611-1647, Accessed: 19/03/2011

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statute, regardless of the vulnerable Section 3 addressed in the Pedersen and Windsor cases, attempts to

null any federal jurisdiction in same-sex marriage cases. DOMA effectively defines the term 'marriage'

and aligns this concept with pre-existing federal law that refers back to the aforementioned items like

benefits and inheritances.

III. A Modern Civil Rights Movement

The 1967 U.S. Supreme Court decision in Loving v. Virginia demonstrated the relationship

between state and federal governments in determining the legitimacy of a marriage between people of

different races.18 Loving v. Virginia also represents a point of departure for same-sex marriage

advocacy that redefines the issues raised through Loving. Case law over the decades has wielded a

substantial impact on both popular and technical ideas of marriage. Courts have used Loving as a basis

for their decisions to create distinctions between homosexuality and race. While the Supreme Court's

1967 decision removed legal barriers to recognize marriages along racial lines, it did nothing for sexual

discrimination. However, one may draw parallels between Loving and gender-based cases of today.

Andrew Koppelman explains:

The closest historical analogue to the radical moral disagreement over

same-sex relationships is the divide between those states that permitted
and those that forbade marriage between whites and blacks. For this
reason, the miscegenation cases deserve particularly close examination.
Their decisions concerning the validity of interracial marriages
were surprisingly fact-dependent. They did not utterly disregard the
interests of the parties to the forbidden marriages or of the states that had
recognized their marriages, but weighed these against the countervailing
interests of the forum. Where those forum interests were attenuated,
southern courts some- times upheld marriages between blacks and whites.
These cases are the most useful precedent for assessing the extra-
territorial validity of same-sex marriages because they deal with the
same problem we face today: a deep moral disagreement about the value
of a certain kind of marriage, reflected in widely varying state
laws.19

18 Loving v. Virginia, 388 U.S. 1, 12 (1967)

19 Koppelman, Andrew, “Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges” (June
2005), University of Pennsylvania Law Review, Vol. 153, No. 6

10
 The material arguments categorically qualify the issues of should people marry versus whom to

marry. The argument of 'should' is a moral one. Anti-miscegenation laws existed because some people

believed that people of different races should not marry. Now that these laws have been swept aside,

the idea of 'whom' may be addressed. We can extrapolate the logic behind anti-miscegenation laws of

the past century and apply them to arguments for barring same-sex marriage today. Loving presents a

curious historical precedent in the language, manner and reasoning used to support DOMA.

R. D. McIlwaine III, Assistant Attorney General of Virginia, argued in 1967 the state's case

before the U.S. Supreme Court. His closing arguments lend insight into the justifications for anti-

miscegenation laws. McIlwaine argued the 'family values' aspect to keep interracial marriage illegal.

“We start with the proposition on this connection that it is the family that
constitutes the structural element of society and that marriage is the legal
basis upon which families are formed. Consequently, this court has held in
numerous decisions over the years that society is structured on the
institution of marriage, that it has more to do with the welfare and
civilizations of a people than any other institution. And there from the
fruits of marriage spring relationships and responsibilities with which the
state is necessarily required to deal.
“Text writers and judicial writers agree that the state has a natural,
direct and vital interest in maximizing the number of successful marriages
which lead to stable homes and families and in minimizing those which do
not. It is clear from the most recent available evidence on the psycho-
sociological aspect of this question, that inter-married families are
subjected to much greater pressures and problems than are those of the
intra-married and that the state's prohibition of interracial marriage for this
reason stands on the same footing as the prohibition of polygamous
marriage or incestuous marriage or the proscription of minimum ages at
which people may marry and the prevention of marriage of people who are
mentally incompetent.” 20

Mr. McIlwaine compares interracial marriages with polygamous and incestuous unions. He also asserts

that Virginia law regarded underage marriage and those deemed mentally incompetent through a similar

lens as that applied to the Loving's situation. The most poignant aspect of this argument underlines how
20 Loving v. Virginia, 388 U.S. 1, 12 (1967) This is my transcription of oral arguments before the Supreme Court that
references briefs filed by both parties. The audio recording can be accessed through the Oyez Project. Accessed May 2,
2011 http://www.oyez.org/cases/1960-1969/1966/1966_395/argument/

11
much emphasis is placed on strengthening one aspect of society that the state identified as being most

desirable. DOMA defenders echo similar sentiment with the contention that federal statute should

remain intact to protect the institution of family in its traditional, heterosexual sense.

Modern legal philosophy among same-sex marriage advocates places 'whom' within the domain

of marriage's legal definition as a fundamental right. The nexus of this comparison rests with the

Fourteenth Amendment. Ken Kersch, currently of Boston College, describes the Supreme Court as

following a rights-based approach in Loving and feels that a similar path would apply for same-sex

marriage:

The Supreme Court, however, has a distinctive role in our system in

setting out vertical definitions of national rights. It would be appropriate
for the Court to compel cross recognition not on full faith and credit
grounds but instead under the equal protection (or possibly due process)
clause of the Fourteenth Amendment. 21

It is in these two ideological camps that we find the fiercest arguments in the debate over same-sex

marriage recognition. DOMA detractors accuse the federal government of singling out a specific group

of people (homosexuals) to be excluded from provisions of federal law and certain fundamental

protections of the Constitution. The complaints claim outright discrimination. Even in states where

accommodation has been made to grant certain rights, such as co-parenting rights for same-sex couples,

substantiates the claim that we live once again in an age of de jure “separate but equal.”22

Historically speaking, one may draw parallels between the arguments in the Loving case that

reflect on the 14th Amendment's scope in Brown v. Board of Education. The prevailing sense in Virginia

marriage statutes, among other states, prior to 1967 adopted a view that limited the 14 th Amendment's

reach. This excerpt from oral arguments provides additional insight. Again, McIlwaine:

“The most far-reaching decision of this court so far as the popular mind is

21 Kersch, Ken I., “Full Faith and Credit for Same-Sex Marriages?” (Spring 1997), Political Science Quarterly, Vol. 122,
No. 1, p. 133 http://www.jstor.org/stable/2658165

22 Plessy v. Ferguson, 163 U.S. 537 (1896)

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 concerned in the last quarter of a century has been Brown against the
Board of Education. In that case, the matter was argued in 1952 and in
1953 restored the case to the docket for re-argument […] and called
attention of all counsel in that case to certain matters which the court, en
banc, wished to have counsel consider.
“The first of these questions was, and I am quoting now from the
court's order, 'What evidence is there that the Congress which submitted
and the state legislatures and conventions which ratified the 14 th
Amendment contemplated or did not contemplate, understood or did not
understand that it would abolish segregation in public schools?' Of course
it cannot be - no presumption can be indulged - that that question was put
to the eminent counsel in that case simply as an academic exercise. The
matter that is material to this court to determine what the evidence was
with respect and the intention of those who adopted the 14 th Amendment
was in the legislatures which ratified it.
“No one has been found who has analyzed this problem who has
suggested that it was the intention of the framers of the 14 th Amendment
or the understanding of the legislatures which ratified it that the 14 th
Amendment affected to any degree the power of the states to forbid the
intermarriage of white and colored citizens.” … “There was no intent of
the 14th Amendment to have any effect at all upon states' power over
marriage.”

The same argument is utilized today to delineate traditional heterosexual marriage and same-sex

marriage. Section 2 of the Federal DOMA contains language granting sweeping powers to state

legislatures to define locally recognized marriages in a similarly strict interpretation of the 14 th

Amendment's history. This narrow interpretation occludes the federal 'equal protection' provisions that

traverse state borders.

Bernard S. Cohen and Philip J. Hirschkop were co-counsel for Richard and Mildred Loving. Mr.

Cohen made a blanket declaration in his argument that the 14 th Amendment argument is the correct

approach to decide the case. He argues that the Amendment is purposely imprecise in its wording and

application. The adaptable structure of the 14 th Amendment reflects the elastic clause of the U.S.

Constitution.23 The imprecise wording compels the state to justify its actions when distinctly

proscribing the rights for one element of the citizenry. Cohen:

23 United States Constitution: Article 1, Section 8

13
 “I think that a state can legislate and can restrict marriage and might even
be able to go so far as to restrict marriage to first cousins as some states
have. And I think that if that case were before the court, they would not
have the advantage that we have of a presumption being shifted - and a
burden being shifted - to the state to show that they have a reasonable
basis for proscribing interracial marriage.
“However if we were here on a first cousins case I think that we
would have the tougher row to hoe because we would have to come in and
show that proscription was arbitrary and capricious - was not based upon
some reasonable grounds. And that is a difficult thing for an appellant to
do. We are not here with that burden. The state is. And we submit that the
state cannot overcome that burden.
"Nowhere in the state's brief, nowhere in the legislative history of
the 14th Amendment, nowhere in the legislative history of Virginia's anti-
miscegenation statutes is there anything clearer than what Mr. Hirschkop
already elucidated that these are racial statutes to perpetuate the values and
bonds of slavery. That is not a permissible state action." 24

Today's proponents of same-sex marriage use a similar logical framework. This tactic relies on the

“legitimate governmental interest” argument. 25 The rhetorical question the emerges from this 1967

exchange in Loving is, “What is the state of the danger to the people?” 26

Indeed, the word 'marriage' itself becomes a fiercely debated topic. A portion of the controversy

is due to the diversity of legal constructs that are attached to it. The word 'marriage' is used to define

who receives federal entitlement disbursements, for example. To overturn DOMA and deem it

unconstitutional would mean to redefine thousands of laws that apply to federal government employee

benefits, private industry benefit distribution, family law, property law and numerous others. So to

overturn DOMA and similar legislation and state constitutional amendments would be the equivalent of

a legal tsunami in terms of the vast expanses of law that would need to be rewritten, adjudicated and

discarded if these are to bear any similarity to litigation that arose from the monumental U.S. Supreme

Court decision in Brown v. Board of Education.27 To date, court opinions in same-sex marriage suits

24 Loving v. Virginia, 388 U.S. 1, 12 (1967) Transcription of oral arguments before the Supreme Court; Accessed through
the Oyez Project. Accessed May 2, 2011 http://www.oyez.org/cases/1960-1969/1966/1966_395/argument/
25 USDA v. Moreno (1973)
26 Loving v. Virginia, 388 U.S. 1, 12 (1967) Transcription of oral arguments before the Supreme Court; Accessed through
the Oyez Project. Accessed May 2, 2011 http://www.oyez.org/cases/1960-1969/1966/1966_395/argument/
27 Brown v. Bd. Of Educ., 347 U.S. (1954)

14
have attempted to sidestep larger constitutional matters.

Courts work very hard to avoid ruling on the constitutionality of any issue. They tend to rule on

an individual case within the strict confines of local law. An example is in a 1948 California case, In re

Dalip Sing Bir's Estates, that concerned settling an intestate estate among spouses in a polygamous

marriage that originated abroad. 28 The two wives of the deceased did not contest the other's entitlement

to their husband's property. The State of California recognized the polygamous marriage for the sole

purpose of settling the estate. The court remained mute on issuing any opinion of the polygamous

relationship.

It can be argued very effectively that the most significant aspect of same-sex marriage to

emerge in the past ten years is a normalization of family law. To illustrate the point is the legislative

initiative from New Jersey in 2004 when Governor James McGreevy signed into law a bill that granted

same-sex partners rights such as hospital visits. The plan also recognizes joint tax benefits for state tax

filing. 'Domestic partnership' status is also assigned to couples to provide legal protection against

discrimination from employers, lenders and property owners in rental agreements. 29 The law does not

grant full marriage rights as we would normally consider them, such as spousal benefits for employer-

provided healthcare.

The limited access to full marriage rights has enflamed same-sex marriage activism. This brings

to the fore three issues involving DOMA as a civil rights issue. First, the de facto “separate but equal”

status rendered in some states for granting limited marriage rights. 30 Second, some states have moved

either by statute or by constitutional amendment to “deprive gays and lesbians even of the protection of

28 Hammerle, Christine A., “Free Will to Will? A Case for the Recognition of Intestacy Rights for Survivors to a Same-Sex
Marriage or Civil Union” (June 2006), Michigan Law Review, Vol. 104, No. 7, pp. 1763-1783
29 Grossman, Joanna, “The New Jersey Domestic Partnership Law - Its Formal Recognition of Same-Sex Couples, and
How It Differs From Other States' Approaches” (January 13. 2004). FindLaw; Accessed April 23, 2011,
http://writ.news.findlaw.com/grossman/20040113.html

30 Plessy v. Ferguson, 163 U.S. 537 (1896)

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general laws and policies that prohibit arbitrary discrimination in governmental and private settings.” 31

At last, DOMA provides the blueprint for states' laws that are similar in their intent to limit

access to public rights and benefits enjoyed by others similarly to miscegenation laws of the past

century. In this regard, we will examine the currently unresolved cases that now hang in legal limbo. As

we will see in the next section, these statutes are queued for resolution on a variety of Constitutional

points.

IV. Constitutional Relevance for DOMA and Unresolved Litigation

Technical aspects of the Constitution, such as the application of the Full Faith and Credit Clause

contained within Article Four and the equal protection under the law afforded under the Fourteenth

Amendment, provide ample basis for elevating same-sex marriage arguments to the federal level. 32

Full Faith and Credit is a concept that extends to final court judgements. This has historically

meant that a judgement in one case, involving debt for example, would also be valid in another state

(where the debtor may reside) and, by extension, enforceable. This is where DOMA's Section 2 runs

afoul of Article Four. The second section reads:

§1738C. Certain acts, records, and proceedings and the effect thereof

‘‘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 such other State, territory, possession, or tribe, or a right
or claim arising from such relationship.’’. 33

It is not difficult to imagine circumstances that may arise in which a sum of money is owed

from one party to another as a result of same-sex marriage that originated, for example, in Vermont.

31 Romer v. Evans, 517 U.S. 620 (1996)

32 U.S. Constitution, amend. 14, sec. 1; U.S. Constitution, art. 4, sec. 8
33 Defense of Marriage Act, Pub. L. 104-199; 110 Stat. 2419 (1996); codified at 1 U.S.C. § 7 (2006)

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Under this hypothetical situation, one party sues the other and secures a judgement for an amount

owed. DOMA allows courts to ignore out-of-sate judgements. The result is one in which a state's

refusal to recognize and enforce said out-of-state judgement constitutes a deprivation of property

without due process.34 This now brings Section 2 in violation of Fourteenth Amendment protections.

This distinctly characterizes that a debt accrued between two previously married men would not be

enforceable across state lines. Reverse the gender of one party and the situation changes completely.

DOMA and California's Proposition 8.35

Three cases are in legal limbo as they await some clarity as how to proceed without defense counsel.

President Barack Obama and Attorney General Eric Holder have announced that this administration

will no longer defend DOMA on the grounds that Section 3 is unconstitutional. Attorney General

Holder explains this decision in a press release:

After careful consideration, including a review of my recommendation,

the President has concluded that given a number of factors, including a
documented history of discrimination, classifications based on sexual
orientation should be subject to a more heightened standard of scrutiny.
The President has also concluded that Section 3 of DOMA, as applied to
legally married same-sex couples, fails to meet that standard and is
therefore unconstitutional. Given that conclusion, the President has
instructed the Department not to defend the statute in such cases. I fully
concur with the President’s determination. 36

Two cases are effected through this decision. The first is Pedersen v. OPM.37 The second is Windsor v.
34 Metzger, Gillian E., “Congress, Article IV and Interstate Relations” (April 2007), Harvard Law Review, Vol. 120, No. 6,
p. 1535
35 The two documents noted here are the federal DOMA and the California DOMA, as an amendment to the California
State Constitution's Bill of Rights.
Defense of Marriage Act, Pub. L. 104-199, 110 Stat. 2419 (1996); codified at 28 U.S.C. § 1738C (2006);

:The “California Defense of Marriage Act, Proposition 8,” accessed April 24, 2011,
http://voterguide.sos.ca.gov/past/2008/general/text-proposed-laws/text-of-proposed-laws.pdf#prop8
This document shows the California ballot initiative as it appeared before voters
36 “Statement of the Attorney General on Litigation Involving the Defense of Marriage Act” (February 23, 2011), accessed
April 25, 2011 http://www.justice.gov/opa/pr/2011/February/11-ag-222.html
37 Pedersen v. Office of Personnel Management et al, “Pedersen v. OPM” (November 9, 2010); accessed April 24, 2011,
http://dockets.justia.com/docket/connecticut/ctdce/3:2010cv01750/91185/ Seven legally married gay and lesbian

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United States.38 Both cases remain unresolved as legal representation for each has not been secured to

defend the statute. Both cases were filed in the Second Circuit Court of Appeals. Leadership in the

House of Representatives has moved to hire counsel to defend DOMA. In Pedersen, the stakes are very

high for DOMA supporters. The plaintiffs have asked for this law to be declared unconstitutional.

California's Proposition 8 faces similar circumstances. The California Supreme Court has ruled

that the California State Constitution was improperly amended through a referendum. The case has

been appealed to the Ninth Circuit Court of Appeals. The Circuit Court has asked the Supreme Court if

the appellants have standing to raise the issue and, as yet, California's Supreme Court has not submitted

a response. The California Attorney General has declined to defend Proposition 8. This raises one

unusual question. May a party, acting as a pro se litigant, present a legal defense for a statute on behalf

of the state when the state refuses to do so?

IV. Conclusion

We may soon see for the first time in decades the occasion when the U.S. Supreme Court must decide

whether or not legal exclusion of a specific group from receiving equal treatment under the law passes

constitutional muster.

The arguments over California's Proposition 8 and similarly in the Pedersen and Windsor cases

directly attack specific aspects of DOMA. Courtroom arguments against DOMA (and its California

accompaniment) could present accusations that marriage, legally defined in the federal statute, is a

discriminatory enterprise. Historically, this heightened awareness toward discrimination was reserved

for those who had been subject to societal mistreatment with the overwhelmingly defining aspects

plaintiffs filed suit claiming that DOMA violates the Constitution because it refuses to recognize lawful same-sex
marriages for purposes of federal and state benefit plans, entitlement programs and tax codes.
38 Windsor v. The United States, Accessed April 24, 2011, http://www.aclu.org/files/assets/2010-11-9-WindsorvUS-
Complaint.pdf Edith Schlain Windsor, sued for a refund of $350,000 from an estate tax bill levied when her spouse of 44
years, Thea Clara Spyer, died. The couple was married in Canada. New York State recognizes the marriage.

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belonging to race and religion. In 1996 it may have seemed politically palatable to exclude

homosexuals from equal treatment under the law. Today there is a discernible shift in legal and societal

philosophy that has changed that idea. Cases that coursed through the legal system in previous decades

illuminate the path toward resolving equal protection issues for same-sex couples. Historical precedent

established in Loving that overturned anti-miscegenation laws go beyond legal analogy. Past very well

creates prologue. The momentum and volume of these cases plus the evolution of constitutional law

philosophy foreshadow the day when DOMA and similar legislative acts will be deemed null and void.

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