Modest Usefulness of DOMA Section 2, The

Abstract

INTRODUCTION|My reason for describing the usefulness of the Defense of Marriage Act ("DOMA") Section 21 as "modest" is because, at least in the short run, I believe it is unlikely to make much, if indeed any, practical difference in how courts decide the cases that are certain to arise. In fact, perhaps the worst thing one can say about Section 2 is that it represents a purely politically motivated declaration by a conservative Congress of its disapprobation of same-sex marriage, and perhaps of homosexuality generally - a cheap sop to the "Christian Right." In addition to that, some critics of Section have asserted that it is also unconstitutional for two reasons. First, it violates the power of Congress under the second sentence of the Full Faith and Credit Clause to implement and articulate the precise meaning of that clause. Second, it violates the so-called "equal protection component" of the Fifth Amendment Due Process Clause, something that was added to the Constitution in 1954 when the Supreme Court helpfully decided to spare the nation the burden of amending the Constitution by the specified, but cumbersome, method of consulting the states, and just went ahead and performed that task itself...