DOMA: The Penumbras Strike Again

by David French

I enjoyed William Duncan’s analysis of the First Circuit’s opinion striking down DOMA. When you noted that the decision essentially provides “that since 1973 the implications of a handful of U.S. Supreme Court decisions have newly invested the federal courts with a power to second-guess Congress’s purposes,” I was reminded of the awesome power of implications in the sexual revolution. Let’s rewind for a moment to Griswold v. Connecticut, the 1965 case that overturned Connecticut’s contraception ban and provided a crucial foundation for the deadly Roe v. Wade. In Griswold, the Court was undeterred by the total absence of textual constitutional support for its position because of, well, implications (or something). Recall these famous words?

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

The DOMA case doesn’t contain this cringe-worthy language, but it does contain much the same cringe-worthy substance. In the absence of textual constitutional support, a court must necessarily grasp at straws in its quest to “do the right thing,” and if implications are all it has, then implications will be enough.

Think for a moment of the awesome power of the sexual revolution over law and logic. Is there a single legal doctrine that can stand against the quest for personal sexual fulfillment? Nondiscrimination regimes fall before sex-selective abortion, religious liberty falls before the “right” to free contraception, and free speech is increasingly subordinate to the “right” of a person to feel good about their sexual choices. Thanks to no-fault divorce, a marriage is less binding than a contract (most contracts carry with them stiff legal penalties for breach — not so in divorce court), and now in the eyes of some courts, the entire rationale for the traditional definition of marriage is reduced to nothing more than malice against gays.

When I was in law school, my “crit” contracts professor told me that the lawyer of the future would have to first argue what’s right (the “social justice” of the case), then describe how the law can be read to reach that result. I can remember rolling my eyes and thinking that such an approach would likely get me sanctioned. I was naive. He was right.