Why the Defense of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors That Determine What the Constitution Requires
This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional – at least not yet. DOMA provides that States need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister States. The Article first shows that the Supreme Court’s recent opinion in Lawrence v. Texas, which struck down as unconstitutional state laws that criminalized sodomy, has not invalidated the DOMA. Lawrence is best understood as having left undecided the constitutional status of same-sex marriage, and the Article explains the benefits of the Court’s having held back its constitutional judgment on this subject at this time. The Article then debunks the many arguments that numerous scholars proffered before Lawrence that DOMA exceeded Congress’ authority. Claims that the DOMA violates state sovereignty by interfering with a family law subject that appropriately falls to the domain of the States are premised on a mischaracterization of the DOMA: the statu
