Dumb and Doma
Dumb and Doma
Why the Defense of Marriage Act Is Unconstitutional
The widely publicized Defense of Marriage Act (“DOMA”), which passed both houses of Congress by huge margins and was signed by President Clinton, has two provisions. One of these defines marriage, for federal purposes, as exclusively heterosexual. When same-sex marriages are eventually recognized, this provision's impact on same-sex couples is likely to be harsh, since at a stroke it deprives them of all the federal benefits to which other married couples are entitled. Its constitutionality however seems difficult to challenge. The other provision authorizes individual states to ignore same-sex marriages when they are performed in other states. This chapter argues that this second provision injures the targeted class of persons so broadly and indiscriminately that it gives rise to an inference of unconstitutional intent. This inference contaminates the first section as well, and so it invalidates the entire act.
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