The Defense of Marriage Act and Uncategorical Federalism

26 Pages Posted: 22 Jan 2011

See all articles by David B. Cruz

David B. Cruz

University of Southern California Gould School of Law

Date Written: January 21, 2011

Abstract

This paper addresses federalism objections to Section 3 of the Defense of Marriage Act (DOMA). Ordinarily, the federal government accepts state’s determinations of what couples are validly married. Section 3 of DOMA, however, fashions a broad exception for same-sex couples, who are definitionally deemed not to be in “marriages.” In addition to equal protection and full faith and credit challenges to DOMA, litigants have made constitutional federalism arguments. In Massachusetts v. United States Department of Health and Human Services, the federal trial court accepted one such argument, though in a form that seemingly categorically denies the federal government authority over marital status. This paper critiques such categorical federalism arguments and finds more plausible a more nuanced, uncategorical federalism argument against DOMA Section 3 based on existing constitutional precedents, an argument that relies on a confluence of factors to conclude that this provision of federal law is unconstitutional.

Suggested Citation

Cruz, David B., The Defense of Marriage Act and Uncategorical Federalism (January 21, 2011). William & Mary Bill of Rights, Vol. 19, March 2011; University of Southern California Law Legal Studies Paper No. 11-1. Available at SSRN: https://ssrn.com/abstract=1745003

David B. Cruz (Contact Author)

University of Southern California Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States
(213)740-6830 (Phone)
(213)740-5502 (Fax)

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