This Essay addresses federalism objections to section 3 of the Defense of Marriage Act (DOMA). Ordinarily, the federal government accepts states' determinations of what couples are validly married. Section 3 of DOMA, however, fashions a broad exception for same-sex couples, who are definitionally deemed not to be in "marriages." In addition to equal protection and full faith and credit challenges to DOMA, litigants have made constitutional federalism arguments. In Massachusetts v. United States Department of Health and Human Services, the federal trial court accepted one such argument, though in a form that might be read to categorically deny the federal government authority over marriage. This Essay critiques such categorical federalism arguments, as well as the district court's specific doctrinal argument, and offers a more nuanced, uncategorical federalism argument against DOMA section 3 based on existing constitutional precedents, an argument that relies on a confluence of factors to conclude that this provision of federal law is unconstitutional.
The U.S. movement for marriage equality for same-sex couples has of late seen numerous victories. Since 2004, Massachusetts, Iowa, Connecticut, Vermont, and New Hampshire, as well as the District of Columbia, have all allowed same-sex couples to marry civilly.1 Other states such as New York and Maryland recognize marriages of same-sex couples validly entered in other jurisdictions.2
Despite this progress, one significant barrier to equality for same-sex couples remains the so-called Defense of Marriage Act3 or "DOMA." Adopted by Congress in 1996, DOMA contains two operative provisions. Section 2 ofthe Act purports to authorize states to refuse to recognize marriages of same-sex couples from other states.4 Section 3 of DOMA defines "marriage" for most federal law purposes to "mean only a legal union between one man and one woman as husband and wife, and the word 'spouse' [to] refer only to a person ofthe opposite sex who is a husband or a wife."5
In the view of many scholars, DOMA is unconstitutional. Section 2' s interstate nonrecognition authorization has been argued to exceed Congress's power to enforce the Full Faith and Credit Clause ofthe Constitution6 by purporting to grant authority to states to deny any effect to such marriages from other states in a profoundly antiUnion fashion.7 Moreover, both section 2 and section 3 with its federal definition of "marriage" have been persuasively argued to violate constitutional equal protection principles.8 In addition, section 3 has been attacked on Tenth Amendment/constitutional federalism grounds.9
On July 8, 2010, the United States District Court for the District of Massachusetts held in two different lawsuits that section 3 of DOMA was unconstitutional in certain of its applications. In Gill v. Office of Personnel Management,10 a case brought by married same-sex couples and surviving members thereof, Judge Tauro held that DOMA' s denial of certain federal benefits to same-sex couples violated equal protection.11 In Massachusetts v. United States Department of Health and Human Services,12 the same judge held that section 3 also violated constitutional federalism limitations embodied in the Tenth Amendment because "the authority to regulate marital status is a sovereign attribute of statehood."13 I believe that Judge Tauro was correct to conclude in Gill that section 3 of DOMA violates equal protection.14 However, his rather categorical federalism approach in Massachusetts is problematic. This Essay critiques such categorical approaches to the Tenth Amendment and state sovereignty and offers instead a more nuanced, uncategorical approach relying not on "traditional governmental functions" analysis15 but instead on the coincidence of a number of factors arguably rendering DOMA section 3 improper on federalism grounds.
First, however, a brief note about the scope of this project. …