Windsor, Federalism, and the Future of Marriage Litigation

Edie Windsor outside SCOTUS

Mark Strasser*

Please click here for a PDF of the article

In United States v. Windsor,[1] the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA).[2] Now that section 3 has been invalidated, section 2 of DOMA may also be challenged.[3] The constitutionality of DOMA section 2 was not before the Windsor Court, so the Court could not have been expected to address its validity directly. Nonetheless, the Windsor opinion provides surprisingly little express guidance with respect to whether section 2 also violates constitutional guarantees.[4] Further complicating any analysis of that section’s validity is that the section has not been authoritatively construed. The constitutionality of section 2 (and even its being subject to challenge) will depend greatly on its authoritative interpretation and, in addition, on a clear articulation of the constraints, if any, on the power of a state to refuse to recognize a marriage validly celebrated in a sister domicile. If section 2 is construed narrowly and is found not to afford states a power that they do not already possess, then it would seem immune from challenge; however, in that event, a key provision of several state mini-DOMAs will lose even the veneer of legality. Continue reading “Windsor, Federalism, and the Future of Marriage Litigation”

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