Part I: The Roots of United States v. Windsor

In United States v. Windsor (2013), the United States Supreme Court will decide by the end of June whether the provision of the Defense of Marriage Act (DOMA) that defines marriage as a union between only a man and a woman contravenes the Fourteenth Amendment’s Equal Protection Clause. This case has sparked a lot of attention from the scholarly community, media, organized interests, my students and the citizenry. The purpose of this column is to discuss the roots of United States v. Windsor (2013), which challenges a key provision of DOMA. My next column will discuss the debates surrounding DOMA.

DOMA became federal law because of two cases decided by the Hawaii Supreme Court: Baehr v. Lewis (1993) and Baehr v. Milke (1996). In these cases, the Hawaii State Supreme Court held that its state constitution could not permit discrimination in same-sex marriages based on the most protective strict scrutiny standard, which requires a state to demonstrate that it has a compelling governmental interest and uses the least onerous means. As a general rule, marriages in one state are recognized in all other states. For example, my wife and I were married in the State of Georgia. Since we live in San Antonio, the State of Texas must recognize our marriage from another state. The logic of respecting another state’s marriage laws is not out of mere courtesy among the various States. Instead, it is a command of the United States Constitution’s Full Faith and Credit Clause in Article IV. What is more, Congress has the right to enforce Article IV through appropriate legislation. In the case of Hawaii’s State Supreme Court decisions, one state has the authority to dictate the same-sex marriage laws of the other forty-nine states because of the Full Faith and Credit Clause.

To prevent any undue influence of the Hawaii State Supreme Court decisions in Baehr v. Lewis (1993) and Baehr v. Milke (1996) on the other states, Congress codified DOMA in 1996. DOMA achieved three objectives. First, for federal purposes, marriage is defined as between only a man and a woman. Second, same-sex marriages sanctioned by states would not be honored by the federal government, which prevented partners of same-sex marriages from receiving specific benefits from over 1,100 national laws that are given to partners of heterosexual marriages. And, third, one state would not have to honor another state’s same-sex marriage. United States v. Windsor (2013) is only challenging the first two objectives of DOMA, not the third one.

While DOMA was a defeat to same-sex marriages, there have been other victories for homosexual rights. In Romer v. Evans (1996), the United States recognized that homosexuals were a protected class under the Equal Protection Clause for the first time.  Instead of using the most protective standard of strict scrutiny, however, the Romer Court decided that homosexuals were only worthy of protection under the least restrictive Rational Basis Test which states that a law must be rationally related to a legitimate legislative objective. Additionally, in Lawrence v. Texas (2003), the Supreme Court extended the right of homosexual partners to engage in sodomy under the (implied) privacy doctrine as it applies to the Fourteenth Amendment’s Due Process Clause and the Equal Protection Clause. Several states have also passed laws recognizing same-sex marriages, civil unions between same-sex partners or common law marriages between same-sex partners. In United States v. Windsor, all eyes will be on the United States Supreme Court’s view of DOMA as it applies to the Equal Protection Clause. While I will not venture to guess the outcome of the decision, I am confident that the justices will be bitterly divided over this issue.

My next column will discuss the debates for upholding or striking down DOMA.

John Hermann is an associate professor in the political science department.