DOMA: How the Fourteenth Amendment Will Help Strike This Law Down

The Supreme Court is gearing up to make a final decision on the constitutionality of bans on same-sex marriage. They will rule that they’re unconstitutional and same-sex couples will get federal recognition. Not only is the tide of popular opinion moving clearly toward acceptance of same-sex couples, but there’s important legal precedent that will influence the Supreme Court decision.

First, there’s the issue of bans within individual states, such as California’s controversial Proposition 8, which bans same-sex marriages. After a long back-and-forth, Prop 8 is up for consideration by the Supreme Court. There are currently bans on same-sex marriage in 31 other states, which would be void when the Supreme Court rules that Prop 8 is unconstitutional. 

In 1967 an interracial married couple were found guilty of violating a Virginia law that defined marriage as limited to within racial lines, and were sentenced to jail in Virginia. They appealed their case until the Supreme Court heard it. In the landmark case of Loving v. Virginia, SCOTUS ruled that bans against interracial marriage went against the Equal Protection clause of the Fourteenth Amendment.

Then, as now, people claiming to know the will of God opposed these marriages on religious grounds. The Virginia judge who ruled that the Lovings had broken the law said in his decision:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." 

Now, interpretations of the story of Sodom and Gomorrah are held up as proof that God didn’t intend for men to have sex with other men, while other interpretations read it as a warning against sexual immorality in general, such as rape and abuse.

Religious arguments against interracial marriage have quieted as racism became politically incorrect and interracial marriages became commonplace.

In 2010, 45.9% of people agreed that homosexual couples should have the right to marry, up from only 10.7% in 1988, according to the National Opinion Research Center at the University of Chicago. So it looks like arguments against same-sex marriage will go the way of those against interracial marriage.

Like they did in 1967, the Supreme Court will rule Prop 8 unconstitutional on the grounds that it violates the Fourteenth Amendment, which requires that laws be applied to everyone equally. And like in 1967, the ruling against Prop 8 will invalidate all other in-state bans.

When Prop 8 falls, so will DOMA — or vice versa, depending on which case the Supreme Court takes up. What Prop 8 is to state law, DOMA is to federal. It defines marriage as limited to opposite-sex couples on a federal level and is the reason that same-sex couples who were legally married in states that allow it aren’t granted the same federal benefits as all other couples. But this, too, is a clear violation of the guarantee of equal application of laws provided by the Fourteenth Amendment and is on its way out.

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Lilly O'Donnell

Lilly O'Donnell is a freelance writer, currently working on her first book.

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