After DOMA, 36 States Will Have Little Choice On Gay Marriage


Opponents of same-sex marriage are bracing themselves for a veritable tidal wave of new legal challenges to laws in 36 states that do not recognize the marriages of gay and lesbian couples. Emboldened by the Supreme Court’s decision striking down key parts of the Defense of Marriage Act (DOMA) — a federal law restricting government marriage benefits to heterosexual couples — lawyers for the LGBT community are citing the court’s majority opinion as a legal basis for throwing out similar laws on the state level.

Leading the charge is the American Civil Liberties Union (ACLU), which has filed suits in Pennsylvania and North Carolina, and has plans to file a suit in Virginia as well. Unlike previous marriage equality lawsuits alleging violations of an specific state’s constitution, and culminating in the supreme court of that state, these suits allege violations of the United States Constitution, meaning that they could eventually make their way to the Supreme Court of the United States. This is a big deal. By opening up the floodgates for federal litigation against state marriage laws, the DOMA decision puts considerable pressure on the states to enact legal reforms — or face the strong possibility that reforms would be imposed upon them by the Supreme Court itself — making the prospect of national marriage equality greater now than ever before.

Anyone who has followed the DOMA case has heard by now that the ruling will have far-reaching implications, but most of us aren’t quite why that is, legally speaking. The ruling, which mandates that all officially recognized marriages be treated equally under the law, has immediate legal ramifications for only the 12 states that already allow same-sex marriages. Then there’s this: The Supreme Court ruled part of DOMA unconstitutional for violating the Fifth Amendment, but the ACLU and others are citing the decision as grounds to do away with similar laws, in the states, for violating the Fourteenth Amendment. How does proving that a federal law violates one part of the constitution help prove that a state law violates a different part of the constitution?



What makes it all work is the fact that DOMA was struck down for violating the Fifth Amendment’s “Due Process Clause,” a provision that appears in the Fourteenth Amendment as well, almost verbatim, but is modified to apply only to the states and supplemented with an “Equal Protection Clause.”

The Due Process Clause, in the Fifth Amendment:

“[N]or shall any person ... be deprived of life, liberty, or property, without due process of law...”

And in the Fourteenth Amendment:

“[N]or shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

There are two important legal doctrines at play here. In the DOMA case, it was the doctrine of “reverse incorporation,” through which the principles of the Equal Protection Clause laid out in Fourteenth Amendment — which addresses only the states — are held as binding for the federal government as well, by way of the Due Process Clause common to both the Fifth and Fourteenth Amendments. Reverse incorporation allowed the plaintiffs to confront a federal government for violating a clause whose language only applies to the states.

In the new lawsuits, which are against the states, the relevant doctrine is the original one of “incorporation,” through which, as one legal scholar explains, “most provisions of the Bill of Rights are deemed applicable to the states in precisely the same manner that they are applicable to the federal government.” The plaintiffs in these cases are hoping that the incorporation doctrine will be enough to convince courts to strike down state laws similar to DOMA for violating the Fourteenth Amendment's Due Process Clause, which is essentially the same as the Fifth Amendment Due Process Clause that DOMA violated.

These cases will hinge on something the Supreme Court left undecided in handing down its decision. This is the question of whether the constitutional guarantee of equal protection implies a right to marry whomever you like, and, if so, whether the states’ bans on same-sex marriage deny certain citizens their constitutional right to equal protection. Those making the case for striking down the law will highlight the damages incurred by members of same-sex couples who are denied the benefits afforded to members of heterosexual marriages.

Supporters of the bans will try to shift the focus of the trials to a debate over the correct definition of marriage — a debate they feel confident they can win, by appealing to centuries of Western tradition as precedent. They will likely argue that equal protection is not denied, because every citizen — gay, straight, or otherwise — is allowed to get married, with the caveat that the term “marriage” applies only to unions between individuals of opposite sex.

Some states will seek to avoid the prolonged legal battle, and the uneasy prospect of an imposed federal solution, by repealing the laws — either through the legislature, or by not defending it in court. Others are sure to fight it every step of the way, virtually assuring that the issue of same-sex marriage will make its way back to the Supreme Court in the not-too-distant future. When this happens, the exact shading of America’s legislative map — states that allow same-sex marriage, juxtaposed with those that don’t — figures to factor largely in the justices’ deliberations. In the run up to "SCOTUS 2," supporters and opponents of same-sex marriage will seek to turn as many states as possible over to their respective sides, while holding on to ones they already have. Activists from both sides will push harder than ever to win over lawmakers in states where the divide is relatively narrow. The DOMA ruling gives the pro same-sex marriage side a potentially decisive advantage, however, in states where their opponents in government outnumber them considerably.

In these states, the LGBT activists now feel they have the legal ammunition to secure validation in the courts of the marriage equality denied them in ballot boxes and state legislatures. Their opponents criticize this approach, however, claiming it ignores the will of the voting public and subverts the democratic process. “The fact that the ACLU is turning to the courts to try to redefine marriage takes it out of the hands of the people,” complained Michael Geer, president of the Pennsylvania Family Institute, speaking with the New York Times.

True, the activists are going over the heads of the people, in a way, but they have every right to do so: the United States is not an absolute democracy, governed by popular decree. It is a constitutional republic. Popular referendums on ballot measures in the states constitute something of a divergence from the tradition of representative democracy that holds at the federal level. There is really no question that federal courts can overturn the state law, but will they? One thing we know for sure is that the losing side will appeal the ruling, which is just one step along the way back to the Supreme Court.