Thanks to Eugene and the conspiracy for having me here. In my first post I thought I’d explain what the Defense of Marriage Act does and the circumstances under which it may be held unconstitutional. We can get into the choice-of-law stuff later. (The act, by the way, is known as “DOMA,” which gives rise to lots of great puns, from Andrew Koppelman’s Dumb and DOMA, to the title a colleague suggested for my paper: Beyond ThunderDOMA.)
Section Three of DOMA defines marriage for purposes of the thousand-some federal statutes that deal with marriage. It says that for purposes of federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” This is an exception to the usual federal practice, which is to look at state law to decide whether a couple is married. (Another part of the statute deals with states’ refusing to give “full faith and credit” to marriages from other states, but for present purposes, it is mostly unimportant.)
DOMA has become very controversial. A number of trial courts (and at least one appellate judge, acting in his administrative capacity) have held it unconstitutional. Last February, the Obama Administration joined in, and began arguing to the courts that it is unconstitutional.
On what basis? Here is where it gets interesting. The courts and the challengers have not really argued that states must recognize same-sex marriages (as the district court in Perry v. Schwarzenegger held). Instead, they’ve argued that even if states can make their own decision about same-sex marriage, the federal government is constitutionally required to respect the state’s choice.
Doctrinally, these challenges turn on levels of scrutiny and government interests, but the closest analogy might actually be the Supreme Court’s confusing opinion in Romer v. Evans. In Romer, the Court struck down a state constitutional amendment that repealed local and state laws that protected against sexual-orientation discrimination, and thereby “impose[d] a special disability upon [gay people] alone.” In almost every other respect, the federal government looks to state law to decide whether a couple is married — age, consanguinity, officiant, previous divorce, etc. — except for same-sex marriages, on which, “alone,” DOMA “imposes a special disability.”
Anyway, you may or may not buy that constitutional argument, but a lot of courts are buying it and the President is selling it. And if that argument wins out, federal law will have to rely on state law to determine whether a same-sex couple is married. (The same thing happens if DOMA is repealed.) But relying on state law, it turns out, is much more complicated than it seems. (That’s where the choice-of-law stuff comes in. We’ll get to it today or tomorrow.)