Mini-DOMAs as Political Process Failures: The Case for Heightened Scrutiny of State Anti-Gay Marriage Amendments

Abstract

Lawsuits seeking gay and lesbian marriage equality are piling up — more than seventy separate cases in thirty-two jurisdictions as of this writing — and advocates are racing to the Supreme Court to see which case might settle the question for the whole nation. As these cases move up swiftly through the federal courts, it is becoming increasingly difficult to see how the Justices can avoid a final reckoning on the question of same-sex marriage during their October 2014 term.

This Essay suggests that political process theory provides the most democratically legitimate justification for the Supreme Court to step in and resolve the question of same-sex marriage for the whole country, as it seems increasingly likely to do, at a time when a majority of states still outlaw the practice. In focusing on same-sex couples’ right to marry, courts and commentators have largely overlooked the history of how and why the mini-DOMAs were enacted. The history and circumstances surrounding the twenty-eight mini-DOMAs that are embedded in state constitutions deserve a more prominent examination in federal marriage litigation.

Collectively, these laws represent a troubling failure of the political process. By strong-arming marriage discrimination into state constitutions — which typically are far more difficult to change than ordinary statutes — during a relatively brief period from 1998 to 2012, mini-DOMA proponents intended to freeze marriage discrimination in place and put it beyond the reach of ordinary democratic deliberation, future legislative reconsideration, and state judicial review. And so the remaining mini-DOMAs should receive searching, skeptical judicial review of their substance because they are the products of a constitutionally suspect lawmaking process.

Keywords: gay, marriage, same sex marriage, political process theory, gay marriage, mini-DOMAs