ARTICLE: The Constitutionality of the Defense of Marriage Act and State Bans on Same-Sex Marriage: Why They Won't Survive Skip over navigation
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Copyright (c) 2010 Howard University School of Law
Howard Law Journal

ARTICLE: The Constitutionality of the Defense of Marriage Act and State Bans on Same-Sex Marriage: Why They Won't Survive

Fall, 2010

Howard Law Journal

54 How. L.J. 125


W. Sherman Rogers*


As of February 2010, a Washington Post poll indicated that "among individuals ages [eighteen] to [twenty-nine], an estimated [sixty-five] percent support marriage equality." 1 These statistics are significant. A majority of the United States Supreme Court has made clear that, in determining the constitutional rights of individuals, the Court considers today's societal views, national and global trends, contemporary values, and an emerging recognition of new positions on an issue. 2

This Article addresses, among other things, the issue of whether state bans denying same-sex couples the right to obtain a marriage license--along with its more than one thousand combined federal and state benefits--and various aspects of the federal Defense of Marriage Act ("DOMA" or the "Act") violate the fairness, liberty, and equality rationales underlying the Due Process and Equal Protection Clauses of the United States Constitution.

The right to marry a person of one's own choosing, regardless of gender, has become an issue of national significance. In the summer of 2010, three federal district court decisions--two in Massachusetts and one in California--affirmed that the Constitution protects an individual's choice of a marital partner regardless of gender. On July 8, 2010, in the case of Gill v. Office of Personnel Management, 3 the United States District Court for the District of Massachusetts invalidated Section 3 of DOMA. 4 The court held that DOMA violated the United States Constitution's Fifth Amendment Due Process Clause (and ...
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