Dumb and Doma

in The Gay Rights Question in Contemporary American Law

Published by University of Chicago Press

Published in print July 2002 | ISBN: 9780226451008
Published online March 2013 | e-ISBN: 9780226451039 | DOI:
Dumb and Doma

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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.

Keywords: Defense of Marriage Act; heterosexual marriage; same-sex marriage; same-sex couples; federal benefits; constitutionality

Chapter.  5929 words. 

Subjects: Constitutional and Administrative Law

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