A series of significant judicial decisions-beginning with that of a trial court judge in Hawaii, followed by a superior court judge in Alaska and then by the Vermont Supreme Court-has brought the issue of homosexual "marriage" to the forefront of our nation's attention.
After judges in Hawaii declared that the state's marriage statute violated the Hawaii constitution, Congress overwhelmingly passed the Defense of Marriage Act (DOMA), under its Article IV power to prescribe the effect of the Full Faith and Credit Clause. Signed by President Clinton, the law defines marriage for purposes of federal law as the union of one man and one woman and prevents states from being forced to recognize other states' conflicting definitions.
Two Supreme Court cases severely weaken the case for DOMA. In Romer v. Evans (1996), the Court declared a state constitutional amendment unconstitutional because it was "born of animosity" toward homosexuals and thus violated equal protection under the U.S. Constitution. In Lawrence v. Texas (2003) the Court stated that all individuals have a due process right to "seek autonomy" in their private relationships, including "personal decisions relating to marriage." In his dissent, Justice Scalia warned that Lawrence "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."
Last November, a 4-3 ruling of the Massachusetts Supreme Judicial Court declared, based on these precedents, that traditional marriage upholds "persistent prejudices" and "works a deep and scarring hardship on a very real segment of the community for no rational reason." The court redefined marriage to be "the voluntary union of two persons as spouses, to the exclusion of all others," declaring that "the right to marry means little if it does not include the right to marry the person of one's choice."
Since May 17, Massachusetts has been forced to issue marriage licenses to same-sex couples. Massachusetts alone has now issued over 2,500 same-sex "marriage" licenses to residents of 27 states and the District of Columbia, creating state-recognized legal standing to challenge DOMA nationwide. As the Boston Bar Association states: "It is only with 'marriage' that Massachusetts citizens can request the Congress to repeal this law [DOMA], or challenge its constitutionality."
The first challenge to the constitutionality of DOMA has been filed in a Florida federal court-"because it's the fastest way to get to the Supreme Court of the United States," said the filing attorney-arguing that DOMA violates equal protection and full faith and credit guarantees of the U.S. Constitution.
Under normal circumstances, the federal DOMA should survive constitutional scrutiny, but the legal profession has been building the case against DOMA since its adoption. According to the ACLU, the law is "an unmistakable violation of the Constitution" and "a deplorable act of hostility unworthy of the support." In the end, despite strong arguments that support congressional powers to pass it, DOMA won't survive activist judges bent on using their evolving interpretations of personal liberty, equal protection, or due process to advance their policy objectives.
This argument is made explicit in the June 2004 Harvard Law Review:
Until recently, DOMA was effectively unchallengeable by the individuals subjected to its stigma. . . . Now the time is ripe for a constitutional challenge to DOMA. . . . DOMA violates principles of equal protection and due process. A strong case can also be made that DOMA abuses the Full Faith and Credit Clause and contravenes fundamental principles of federalism. A successful equal protection or due process challenge, however, is likely to have the farthest-reaching implications for the future of same-sex marriage in two respects. First, if DOMA is found to violate equal protection or due process, the state DOMAs are likely to fall on the same grounds. And second, it is difficult to imagine how the Court could find excluding same-sex couples from the definition of marriage unconstitutional without creating a constitutional requirement that same-sex couples be allowed to marry.
Assuming the Supreme Court follows the logical trend of its own precedents and jurisprudence of recent decades, it would be inconsistent for a majority of the Justices not to redefine marriage according to their previously stated opinions. As Harvard Law Professor Lawrence Tribe has stated, "You'd have to be tone deaf not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect."
Matthew Spalding, Ph.D., is Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.