State DOMAs, Neutral Principles, and the Mobius of State Action

Abstract:     
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.

Keywords: defense of marriage, same-sex, gay, lesbian, homosexual, gender, constitutional, state action, contract, equal protection, Romer, Lawrence, Shelley, Kraemer, federalism, neutral principles

Accepted Paper Series