The 'Federal Law of Marriage': Deference, Deviation, and DOMA
93 Pages Posted: 21 Jun 2013 Last revised: 9 Jan 2019
Date Written: 2013
The article discusses the history of federal inroads into marriage by examining federal interventions during the nineteenth and early twentieth century, argues that, in some cases but not all, marriages' federal benefits are indeed intended to support natural procreation, argues that DOMA's underlying statutes are key to ascertaining the purposes of federal marriage benefits and burdens, distinguishes sexual orientation discrimination from race discrimination and offers a proposal for dealing with equal protection challenges to denials of marriage rights to same sex couples. The proposal, which depends upon dual standards of review, recognizes the historical denial of family rights to same sex couples while reserving to the Congress its right to make decisions about spending priorities from the public purse.
Keywords: marriage, same sex marriage, DOMA, Windsor v. United States, domestic relations, slave marriage, Mormons, ERISA, marital taxation, marital estate tax deduction, African Americans and marriage
JEL Classification: H11, H50, H70
Suggested Citation: Suggested Citation