State DOMAs, Neutral Principles, and the Mobius of State Action
Darrell A. H. Miller
Duke University School of Law
September 15, 2008
Temple Law Review, Vol. 81, No. 4, p. 967, Winter 2008
U of Cincinnati Public Law Research Paper No. 09-39
This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a testament to the law of unintended consequences, a cautionary tale about state experimentalism, and comment on the aspiration and limits of neutral principles of adjudication.
Number of Pages in PDF File: 29
Keywords: defense of marriage, same-sex, gay, lesbian, homosexual, gender, constitutional, state action, contract, equal protection, Romer, Lawrence, Shelley, Kraemer, federalism, neutral principlesAccepted Paper Series
Date posted: September 19, 2008 ; Last revised: January 29, 2010
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