The DOMA decision and federalism

The DOMA decision and federalism

Justice Anthony Kennedy’s majority opinion for the Court in the DOMA case relies partly on federalism considerations, striking down Section 3 of DOMA in part because it goes beyond the usual scope of federal authority. In reaching this conclusion, it cites (among other sources) the amicus brief submitted by several federalism scholars, including co-bloggers Randy Barnett, Dale Carpenter, Jonathan Adler, and myself (pg. 23). As Kennedy points out, the avowed purpose of DOMA was to promote traditional heterosexual marriage, and “influence or interfere with state sovereign choices about who may be married”:

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality…” The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.

The arguments put forward by BLAG [defending DOMA before the Supreme Court] are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted…

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