Part II: The Debates Surrounding DOMA

My last column discussed the roots of United States v. Windsor (2013), which challenged the constitutionality of the Defense of Marriage Act (DOMA) on Equal Protection Clause grounds. This column will discuss some of the arguments for upholding or striking down DOMA.

I will discuss three arguments presented in favor of DOMA. First, proponents of DOMA believe that marriage is a sacred union between one man and one woman. If the federal government were to formally recognize same-sex marriages, it would diminish the significance of the concept of traditional marriage.  After all, advocates of DOMA argue that marriage is an institution that predates recorded history. While traditional marriage exists to serve procreative and unitive functions, neither is possible between same-sex partners. The traditional marriage strengthens greater society with a strong, tight knit nuclear family.  Second, supporters of DOMA contend that children of straight parents fare better than those of same-sex marriages, although single parents are not usually considered in these studies. This argument manifests itself in two ways – the traditional roles of father and mother as care givers are superior to those of same-sex parents; and children of same-sex parents also have a stigma attached to them by the external community that is not attached to children of traditional marriages. Third, there is the slippery slope argument. If marriage is founded upon feelings of affection and love, it can extend to other types of adult consensual activities. If the federal government recognizes same-sex marriages, the next step will be to allow polygamous marriages and ones involving incest ““ as long as these types of marriages are entered into between/among consenting adults.  Where will the line be drawn for what is truly a marriage?

In contrast to the proponents of DOMA, opponents of the federal law make two cogent arguments.  First, DOMA, which is a federal law, violates the Tenth Amendment’s powers reserved to the states, because domestic relations are a core function of states. With the exception of a clear constitutional violation, states regulate the qualifications for and the dissolution of marriage. States, for example, mandate that partners be a minimum age before entering into marriage. Many states have express requirements for partners seeking divorce (e.g., a certain amount of time must pass before the filing of divorce).  Perhaps the strongest argument on behalf of same-sex marriages can be found in the logic in ending the prohibition of interracial marriages. In Loving v. Virginia (1967), the United States Supreme Court held that the Constitution does not tolerate state laws that forbid interracial marriages under the Fourteenth Amendment’s Due Process and Equal Protection Clauses. In terms of the Fourteenth Amendment’s Due Process Clause, the Court held that the liberty to marry is a (implied) fundamental right. If the concept of substantive due process applies to interracial couples right to marry, it should also naturally apply to same-sex marriages.  The Loving Court, moreover, found that the purpose of the Virginia law prohibiting interracial marriages was based on the concept of maintaining a pure white race, violating the Equal Protection Clause.  Similarly, if the federal government recognizes marriage as between only a man and a woman, it is depriving the right to marry between same-sex partners solely based on sexual orientation ““ not to mention the myriad of benefits that federal government provides to heterosexual married couples that are expressly denied to same-sex partners.  Opponents of DOMA argue that this is a clear violation of the Equal Protection Clause.

It is clear that the proponents and opponents of DOMA both have strong cases to support their arguments. While I personally believe in the right of same-sex marriages, it might just be more important to understand the complexity of the issue.

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