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

Darrell A. H. Miller
University of Cincinnati College of Law



Temple Law Review, Vol. 82, 2009
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.

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

Date posted: September 19, 2008 ; Last revised: November 12, 2009

Suggested Citation

Miller, Darrell A. H. , State DOMAs, Neutral Principles, and the Mobius of State Action (September 18, 2008). Temple Law Review, Vol. 82, 2009; U of Cincinnati Public Law Research Paper No. 09-39. Available at SSRN: http://ssrn.com/abstract=1270115


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Contact Information

Darrell A. H. Miller (Contact Author)
University of Cincinnati College of Law ( email )
P.O. Box 210040
Cincinnati, OH 45221-0040
United States
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