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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

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.

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 principles

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Date posted: September 19, 2008 ; Last revised: January 29, 2010

Suggested Citation

Miller, Darrell A. H., State DOMAs, Neutral Principles, and the Mobius of State Action (September 15, 2008). Temple Law Review, Vol. 81, No. 4, p. 967, Winter 2008; U of Cincinnati Public Law Research Paper No. 09-39. Available at SSRN: http://ssrn.com/abstract=1270115

Contact Information

Darrell A. H. Miller (Contact Author)
Duke University School of Law ( email )
Box 90360
Duke School of Law
Durham, NC 27708
United States
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