Do we need a constitutional amendment to protect marriage? Even many in the GOP wonder. As Senator Susan Collins (R., Me.) told the Boston Globe earlier this year, “I don’t, at this point see the need for a constitutional amendment as long as the Defense of Marriage Act [DOMA] remains on the books.”
For people who define the problem as the seemingly unstoppable spread of same-sex marriage from one state to others, a key question becomes: Is the federal DOMA enough?
The answer is clear: no. The federal DOMA is unlikely to prevent the spread of same-sex marriage from one state to another, for the following reasons:
1. The intellectual groundwork for striking down the federal DOMA has already been laid in the scholarly literature. The legal threat to that law is now imminent, because Massachusetts has for the first time given plaintiffs standing to challenge it. As a note in the June issue of the Harvard Law Review points out, prior to Goodridge, “no potential plaintiff had suffered an injury sufficiently ‘concrete and particularized’ to establish standing to challenge either provision of DOMA.” Now that some same-sex couples have received marriage licenses, “the time is ripe for a constitutional challenge to DOMA.”
According to newspaper accounts, same-sex couples in at least 46 states who have received marriage licenses in Massachusetts, California, or Oregon now have standing to challenge DOMA in the federal courts.
2. Even if upheld, DOMA won’t keep legal elites from creating same-sex marriage in many states. Attorneys general and local officials in California, New York, and elsewhere have refused to defend state marriage laws, or are insisting that their state recognize same-sex marriages performed elsewhere.
New York attorney general Eliot Spitzer has already indicated that New York law “presumptively requires” recognition of same-sex marriages from Massachusetts. When San Francisco Mayor Gavin Newsom and his counterparts in a handful of cities across the country began issuing same-sex marriage licenses, California’s attorney general simply petitioned the California Supreme Court for “resolution of these important issues,” rather than defending the state’s marriage law. Shortly thereafter, in March, the mayor of Seattle declared that his city (and all private groups that contract with the city) must recognize as valid the same-sex marriages of employees, wherever performed.
3. Radically different marriage laws in different states are difficult to sustain over time. A federal definition of marriage that is different from state definitions produces immediate conflicts in many areas of law that the Supreme Court will be tempted to harmonize by ordering the recognition of same-sex marriage on equal-protection grounds. One way or another, we will soon have a national definition of marriage. If we pass a marriage amendment, we will retain our shared understanding of marriage as the union of man and woman, ratified by the people of the United States. If we accept judicial supremacy on the marriage question, we will probably end up with a judicially created and approved national marriage definition that redefines the institution in unisex terms.
4. Legal scholars from both sides agree: Federal courts are now poised to strike down state marriage laws. Speaking about the recent Supreme Court decision Lawrence v. Texas (2003), Harvard law professor Lawrence Tribe commented, “You’d have to be tone deaf not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect.” Bill Eskridge, a law professor at Yale, said, “Justice Scalia is right” that Lawrence signals the end of traditional marriage laws. Jon Bruning, attorney general of Nebraska, testified before the Senate in March that a federal judge is likely to soon declare Nebraska’s marriage amendment unconstitutional: “This is the first federal court challenge to a state’s DOMA law. My office moved to dismiss the suit, but last November, the Court denied our motion to dismiss. The language in the Court’s order signals that Nebraska will very likely lose the case at trial.”
5. Federal lawsuits attacking marriage laws have already been filed in four states. While most marriage litigation has historically been based on state constitutional provisions, in just the past year cases in three states (Florida, Arizona, and Nebraska) have brought federal constitutional challenges to both state and federal DOMA laws on equal-protection, due-process, and full-faith-and-credit grounds. In June, the same lawyers that filed the Goodridge case in Massachusetts filed suit alleging that a state law preventing out-of-state same-sex couples from marrying in Massachusetts violates the Privileges and Immunities Clause of the 14th Amendment.
Scholars who have testified that the DOMA is constitutional under the Full Faith and Credit Clause of Article IV miss the point; the greatest federal judicial threat to the DOMAs springs not from the relatively settled world of full-faith-and-credit jurisprudence, but from the Supreme Court’s evolving view of equal protection and personal liberty, as evidenced by such recent cases as Lawrence and Romer v. Evans (1996). As Justice Scalia noted in his Lawrence dissent, this evolving jurisprudence not only threatens DOMA, but also poses a substantive threat to individual state marriage laws.
A federal injunction to strike down DOMA will take only minutes. A constitutional amendment takes months or years to pass. DOMA is unlikely to survive in the current judicial climate. Even if it does, it is not designed to prevent–and will not prevent–the spread of court-created same-sex marriage. If we want to protect marriage as the union of husband and wife, the time to act is now.