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

29 Pages Posted: 19 Sep 2008 Last revised: 27 Dec 2014

Date Written: September 15, 2008


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

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:

Darrell A. H. Miller (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics