Windsor, Federalism, and the Future of Marriage Litigation

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.

Part II of this Article discusses Windsor. Part III examines that decision’s possible implications for section 2 of DOMA, including some possible constructions of the provision and some of the differing constitutional implications of these alternate constructions. Part IV analyzes Windsor’s possible implications for state same-sex marriage bans. The Article concludes that while Windsor could have been clearer with respect to its implications for section 2 and for some of the state same-sex marriage bans, the most plausible interpretation of Windsor establishes the constitutional invalidity of DOMA’s section 2 and of many state mini-DOMAs, in part if not in whole.