DOMA and the Constitutional Coming Out of Same-Sex Marriage
Julia Halloran McLaughlin, 24 Wis. J.L. Gender & Soc’y 145 (2009)
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The Federal Defense of Marriage Act (“DOMA”), designed to protect the heterosexual married, reflects the federal sovereign’s decision to discriminate against same-sex couples seeking to marry, rather than to apply one marriage standard across sexual-orientation lines. Such a facially discriminatory statute fails constitutional review, an example of majoritarian, discriminatory bias. The Constitution protects, as a bedrock principle, the individual’s right to autonomy and self-determination in matters of marriage without regard to sexual orientation. Should the right to marry depend upon sexual orientation or upon broader concepts of equality and self-determination? This article answers these questions by using and extending the concept of structural reasoning.
