Defending Marriage in Light of the Moreno-Cleburne-Romer-Lawrence Jurisprudence: Why Doma Cannot Pass Muster after Lawrence
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Authors
Strasser, Mark P.
Issue Date
2005
Volume
38
Issue
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
INTRODUCTION|Massachusetts now recognizes same-sex marriages and it seems reasonable to expect that the constitutionality of the Defense of Marriage Act ("DOMA") will soon be tested. Lawrence v. Texas, in which the Court recently declared Texas's same-sex sodomy ban unconstitutional, may well play an important role in the analysis of DOMA's constitutionality, since the decision has already been characterized as a watershed in the civil rights movement. The focus of this article is on the implications of Moreno-Cleburne-Romer-Lawrenceline of cases for the constitutionality of each of DOMA's provisions. The Defense of Marriage Act has two parts, each designed to perform a different function. One part discusses the full faith and credit obligations of the states with respect to same-sex marriages validly celebrated in other states, while the other part defines marriage for federal purposes. Part I of this article analyzes the full faith and credit provision, exploring some of its ambiguities and describing some of the ways in which it is constitutionally vulnerable. Part II describes the provision defining marriage for federal purposes. This provision is vulnerable for some of the reasons that the full faith and credit provision is vulnerable and for other reasons as well. The article concludes by suggesting that both DOMA provisions should be struck down as violations of constitutional guarantees and that their being struck down would have salutary effects both for those who have...
Description
Citation
38 Creighton L. Rev. 421 (2004-2005)
Publisher
Creighton University School of Law