The Promise and Perils of the DOMA Decision:


The Future of Litigation Under the Majority’s Holding and Justice Scalia’s Concerns

by Guest Essayist David Zaleski, ( B.S. in Industrial and Labor Relations, Cornell University; Juris Doctorate, Albany Law School.  The author would like to thank Ms. Amy D’Amico for encouraging this post and for her insight in writing it.


            On June 26, 2013, the United States Supreme Court issued a much anticipated opinion striking down section 3 of the Defense of Marriage Act (DOMA).[1] DOMA, enacted in 1996, was a reaction to the beginning of the same-sex marriage debate, before any State had yet to adopt same-sex marriage legislation.[2] 

The Supreme Court’s decision in United States v. Windsor examines the constitutional challenge to Section 3 of DOMA.[3]  Section 3 of DOMA states – or rather stated – that:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.[4]


            The Court ultimately found Section 3 of DOMA unconstitutional.[5]  The majority opinion in Windsor examines several aspects of constitutional law, all of which result in striking down the legislation but leaving the reader with a hunger for direction in future related litigation.

The case centered on Edith Windsor, widow of the late Thea Spyer, who was required to pay a federal estate tax on the estate left to her by her wife.[6]  DOMA prohibited Windsor from qualifying for the exemption to said tax, an exemption she would have been able to utilize had she been in a heterosexual marriage.[7]  This case is a blessing and a curse for the future of marriage equality. 

            This article seeks to tease out the potential future impact of the Windsor decision.  This analysis will look predominantly at the Court’s constitutional analysis vis-à-vis federalism, Due Process, and Equal Protection.  Absent from this discussion is the Court’s focus on the issue of standing, a jurisdictional concern, as it is unimportant for the impact this case will have on future litigation.[8]  I will then discus Justice Scalia’s dissent, focusing largely on his foreshadowing of certain doom to our system of government and the courts.  Following this discussion are several clear solutions already in place in relation to other, though less hotly contested, marriage laws. 

I)    Constitutional Concepts in Windsor and How the Court Treats Them

The Court in Windsor focuses on three aspects of constitutional law: federalism, Due Process, and Equal Protection.[9]  None of these concepts, however, provide the specific rational for the ruling, but are largely influential on each other in order to result in finding DOMA Section 3 unconstitutional.[10]  In the end, while there may not be a clear rule of law, the Windsor decision sets the foundation for future developments in civil rights litigation.  Before these promising foundations can be explored, the Court’s treatment of the constitutional doctrines must first be examined briefly.

a)      Federalism

First, the Court looks to federalism, the basis of our government for over two centuries.[11]  A hallmark of our federalist system is the distinction between the provinces of the two levels of government: generally, the federal government concerns itself with national concerns while the states have power over domestic concerns.[12]  The Tenth Amendment of the Constitution specifically provides that any of the “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” [13] 

In Windsor, the Court uses these principles without calling the overall issue of the case an issue of federalism.  The Court expresses concern that DOMA has overstepped federal province by infringing upon a traditionally state held concern: domestic relations.[14]  In the midst of this discussion, the Court examines the history and tradition of the “extent of the state power and authority over marriage” that the States have held since the Constitution was ratified.[15] 

The analysis progresses to the point at which the answer could be clearly grounded in federalism principles; the Court, however, does not stop there.   The Court posits that while the States, like New York, have sought to recognize same-sex marriages[16] and thereby “confer[ ] upon them a dignity and status of immense import[,]” the Federal Government, by way of DOMA, “use[d] this state-defined class for the opposite purpose – to impose restrictions and disabilities.”[17]  This tastes more of Due Process and Equal Protection than federalism.

b)     Due Process and Equal Protection

Due Process and Equal Protection are two constitutional concepts that focus on a central concern: the rights of individuals.  Due Process deals with fundamental rights that are granted by the Constitution explicitly and implicitly.  For example, there is no Constitutional language that states that every citizen of the United States is granted the right to privacy; the Supreme Court, however, has found that such a right exists.  Equal Protection is more concerned with the comparison of one class of people to another class of people. 

1)      Equal Protection

For Equal Protection, the Court examines a class of people and determines if a law unduly burdens or prevents that class of persons from access to rights granted to others.[18]  The Court has upheld some restrictions that classify individuals differently, such as criminals versus the general public.  To see if there is a violation of Equal Protection, the Court will look to see if there is a history of discrimination against the class of people, the “immutability” (ease the trait can be seen or distinguished) of the trait, any bar to the political process the class of persons has experienced, and the pervasiveness of the discrimination. 

From this, the Court then has three levels of scrutiny to choose from: strict scrutiny, intermediate scrutiny, and rational basis review.  Strict Scrutiny requires a compelling government interest, the means to that end is essential and necessary to achieve the goal; the Court will presume the law unconstitutional.  Strict Scrutiny is used most notably for race.  Intermediate Scrutiny is generally used for gender and requires a substantially related means to an end that is an important government interest.  The Court will again presume the law to be unconstitutional.  Intermediate Scrutiny is used most notably for gender.  Rational Basis Review is the least stringent standard and is reserved for all classes that have not been marked for heightened scrutiny and do not rise to meet the burden for heightened scrutiny.  Rational basis requires only a rational relation to a legitimate government interest.  The Court will presume constitutionality here, giving great deference to the government. 

2)      Due Process

For Substantive Due Process, the Court will examine if a fundamental right is at issue.  To determine if something is a fundamental right, the Court will look to (1) precedent, (2) a history and tradition of the “right” and compare past and present, (3) contemporary attitudes, and (4) policy.  The determination, however, is greatly influenced by how the right is characterized by the Court: for example, in Loving v. Virginia the Court characterized the right as a “right to marriage” instead of a “right to interracial marriage,” which would have caused a different result.[19]

3)      Due Process and Equal Protection in Windsor


When the Windsor Court approached Substantive Due Process and Equal Protection, the Court’s analysis blended different aspects of both.  The Court’s treatment of both doctrines – and indeed the whole opinion’s reasoning – are “shifting [in] its justifications[.]”[20]  What is remarkable, however, is that the Court seems willing to view the case as either a Due Process issue or an Equal Protection issue.  The analysis the Court progresses through, as Justice Scalia points out, is based largely on a rational basis level of scrutiny Due Process precedent.[21]  The Court’s focus is on “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage [which] here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of marriage.”[22] 

There is an overarching tone and finding in the majority opinion of a “purpose and effect of disapproval of  [a] class” which they trace even through the legislative history.[23]  The House Report at the time of DOMA’s enactment concluded that DOMA “expresse[d] ‘both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”[24]  To be sure, the Court has previously held, most notably in Lawrence where Justice Kennedy’s opinion adopts language from Justice Stevens’ dissent in Bowers, that morality cannot be a basis for a law, especially if it infringes on certain rights.[25]  The Supreme Court has been inconsistent with its analysis banning morality based legislation; to be sure, such legislation cannot all be unconstitutional or else some morality based laws, such as murder, would be allowed.[26]  It has, however, been consistent in striking down progressively more controversial morality-based legislation in regard to gay rights and same-sex conduct.  This treatment has “added only new confusion to the treatment of sexual orientation classificiations under the Equal Protection Clause” in particular, and Windsor only continues this confusion.[27]

II)    The Impact of Windsor

With this decision, the Court has left those searching for some glimpse at the future largely still in the dark. The greatest problem with Windsor is a problem the Court has been engrained in for several years now: the Court lacks some clear rule of law on which the decision is based. 

In the 1996 decision Romer v. Evans[28], the Court found that a Colorado State Constitution Amendment, which “nullifie[d] specific legal protections for this targeted class” of homosexuals, in various areas of law, unconstitutional.[29]  Romer was decided without giving a clear level of scrutiny under Equal Protection analysis, which has led to an uncertainty as to the classification of sexual orientation within the three-tiered scheme the Court has adopted through the centuries.[30]  This uncertainty continues with the Windsor decision.

The Romer majority oscillates between different levels of scrutiny – calling the review used “rational basis” review,[31] but leaving the level of scrutiny undetermined as the challenged Amendment “fails, indeed defies, even this [rational basis] conventional inquiry.”[32]  Indeed, the Romer Court found that the Amendment’s existence, given the arguments offered in favor of the Amendment, “seem[ed] inexplicable by anything but animus toward the class that it affects[.]”[33]  The conclusion was that a law may be upheld if it advances a legitimate government interest “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous[,]”[34] and yet animus towards a group pushes the constitutionality of a law into question.  This is significant because, while a law may disadvantage a class of people, it may not disadvantage or burden that class if the law in enacted with animus or malice.  This is a key provision the same-sex marriage litigants should look at in the future when dealing with legislation that was created out of fear and animus towards homosexuals.  To be sure, “prejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities” gives rise to the potential for a heightened scrutiny.[35]   Windsor accepts this principle and makes it all the more alluring and helpful for same-sex marriage litigants, as well as litigants in other areas of gay rights.  The Windsor decision has taken yet another step further, bringing to the forefront the most clear foreshadow of the future to date.

The Windsor decision examined some precedent which has a significant impact on the future by opening the door just a little more than before.  In distinct and careful language, the Court states that “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, eg., Loving v. Virginia, 388 U.S. 1 (1967); but, subject to those guarantees, ‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’  Sosna v. Iowa, 419 U.S. 393, 404 (1975).”[36] This citation to Loving, a hallmark case establishing the right to marriage, is something that has been desired by much of the same-sex marriage litigants.[37]  Now, the Supreme Court seems to recognize in some capacity that there may be a constitutional challenge akin to the struggle the Lovings faced back in the 1960s. The Supreme Court, however, explicitly states in Windsor that it refuses to resolve the same-sex marriage debate currently.[38]  This should not cause panic, though.  Windsor is the most recent of a line of cases dating back to Bowers in which the gay rights movement has seen incremental steps forward.[39]

The Court bolster’s its opinion in Windsor by stating that “. . . DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.”[40]  Here the Court sets up future challenges to State laws that treat same-sex marriages different than heterosexual marriages vis-à-vis the “incidents, benefits, and obligations of marriage” within a State.[41]  By stating this, the Court has taken a small stance against discriminatory state laws that exist currently or in the future.  Furthermore, the Court’s holding is illustrative: “This [analysis and finding] requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”[42]  The decision is based in liberty principles, a classic Substantive Due Process focus.  This gives much promise: liberty interests are fundamental rights and again, as the Court did in Lawrence when they found liberty interests and privacy concerns at issue, the decision turns on the deprivation of these rights.  Here, the Court also begins to change the tides, stating that marriage laws must obey “constitutional guarantees” and that individual liberty interests are involved.   

III)             A Reply to Justice Scalia’s Dissent

Justice Scalia’s dissent is interesting, although it mischaracterizes a number of things.  I agree with Justice Scalia on one point: the majority’s opinion is a bit of a quagmire of analysis without a clear path.[43]  I, however, respectfully disagree with the learned Justice’s concerns.  This article will only examine a few of those concerns.  To address all of Justice Scalia’s concerns would be too great for this article; therefore, I have decided to focus on Justice Scalia’s concerns based on his interpretations and observations since the holding in Lawrence v. Texas and Justice Scalia’s hypothetical same-sex married couple.

a)      Justice Scalia’s Lawrence Based Concerns

To begin with, Justice Scalia examines Lawrence v. Texas[44] as a warning sign of what may come of the Windsor decision.  Justice Scalia is under the belief that, like Lawrence, the Windsor decision will lead the Court to future holdings on certain related issues.[45]  While Scalia states that in Lawrence the Court determined that there was a right to homosexual sodomy – of which several readings of the opinion in Lawrence have rendered me unable to find that holding – the present DOMA challenge has not touched any privacy rights as Lawrence did.[46]  The majority in Lawrence did limit their opinion, stating that the case at hand dealt with two fully capable, mutually assenting adults who engaged in “sexual practices common to a homosexual lifestyle” in the privacy of their own home.[47]  The majority then said that the case did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”[48]

This is the language Justice Scalia now believes this majority has violated.  Under his view, the majority in Windsor has now told the government to give formal recognition to homosexual couples because DOMA “demeans the couple, whose moral and sexual choices the Constitution protects.”[49]  What Justice Scalia leaves out of his analysis is the continuation of that sentence in the majority’s opinion.  In full, the majority held that: “The differentiation [that DOMA creates by “plac[ing] same-sex couples . . . in a second-tier marriage”] demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.”[50]  Here, the Court does say that the federal government must give recognition to homosexual marriages, but only if the State accepts the marriage as valid.  This leads to Justice Scalia’s greatest miff. 

b) Justice Scalia’s Hypothetical Case

Justice Scalia is overly concerned with the state of the union following this decision, mostly in the realm of taxation and conflict of laws.  It should be noted here that Windsor dealt exclusively with Section 3 of DOMA.  DOMA does include another section, Section 2, which focuses on conflict of laws and interstate recognition of marriages, is still enforceable and has not been struck down.[51]  Section 2 is a codification of the conflict of laws rules that were already in effect at the time of its enactment and these rules are still in effect today: codifying the principle that, under the Full Faith and Credit Clause of the U.S. Constitution, each State does not have to recognize the statutes of other States, but must recognize their judgments.[52]

A lot of Justice Scalia’s concerns are related to conflict of laws principles.  DOMA still has one operable section dealing exclusively with conflict of laws issues.  To be sure, as noted above, DOMA’s Section 2 leaves the choice of conflict rules up to the states.  In the realm of conflict of laws there are two general rules: lex celebrationis (law of the place of the celebration) and lex domicilii (law of the place of the domicile).  The states have their choice in which applies, though most follow the law of the place of celebration approach.  This is illustrated above in relation to the recognition of first cousin or common-law marriages.  In fact, most States believe in validating a marriage that has been entered into in another jurisdiction that recognizes the marriage as being valid.[53]  This validation rule is strongly adhered to and favored by the Courts. 

To begin his litany of concerns, Justice Scalia poses a hypothetical – something lawyers just love to work with – involving “a pair of women who marry in Albany [New York] and then move to Alabama, which does not ‘recognize as valid any marriage of parties of the same sex.’”[54]  The concerns of Justice Scalia include:

When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.[55]


These concerns are largely making mountains of ant hills.  Striking down Section 3 of DOMA does not throw the nation into uncertainty by dismantling the definition of what a marriage is or who spouses are.  For the purpose of federal law, much of the concern Justice Scalia raises has already been dealt with in other contexts.

While the purpose of a definitional provision may be to clarify issues and provide guidance, Section 3 of DOMA did not clarify as much as one would have liked.  Section 3 rather restricted a class of people from obtaining certain governmental privileges and provisions.  The holding renders Section 3 unconstitutional, which opens up previously denied privileges.  This is where Justice Scalia views the devil lurking.  The problem with finding the devil here is that Justice Scalia is ignoring the previously dealt with demons that surround it.  

The most analogous “demon” to Justice Scalia’s supposition is common-law marriage.  Currently there are only ten jurisdictions (nine States and the District of Columbia) that recognize common-law marriage.[56]  In addition, five states have grandfathered common-law marriage, New Hampshire recognizes common-law marriage only for probate, and Utah recognizes common-law marriages that have been validated by a court or administrative order.[57]  By contrast, currently twelve states and the District of Columbia recognize same-sex marriages; another six states recognize civil unions, but not marriages.[58] Thirty-six states specifically banned same-sex marriage by legislative action or through their state constitutions.[59]  Forty-one states ban entering into common-law marriages within their territories.

If the heterosexual couple entered into a valid common-law marriage in a state that recognized common-law marriages, the same issues apply as to Justice Scalia’s homosexual couple who entered into a valid marriage in a state that recognizes same-sex marriages.  The same questions arise, and have arisen, before.  One of Justice Scalia’s biggest concerns is in relation to the filing of federal income tax.  For federal tax purposes, a common-law marriage is recognized as valid if it is valid in the state in which the couple is domiciled currently, or in the state where the common-law marriage began.[60]  The IRS has taken the stance that a common law marriage will be recognized even if the couple moves out of a state that recognizes common-law marriage into a state that does not recognize such marriages.[61]  This applies only to federal taxes, though; the states still have control over state taxes.  Why would a same-sex marriage be treated differently?  Indeed, in relation to the marriages of cousins, twenty states allow cousins to marry while twenty-five states prohibit first cousin marriages and six states allow first cousin marriages in certain circumstances.[62]  Here too we see another potential conflict issue related to the definition of marriage differing between the states.  Again, the federal tax laws have remedied this much in the same vein as common-law marriages.  Why then, again, should same-sex marriages be treated differently?  

IV) Conclusion

The Court’s recent decision in Windsor promises much for the future.  It is a step forward on a path that has been taken by incremental advances and minor victories. Since the Court didn’t decide the same-sex marriage issue, it remains open.  The Court, however, did give us more guidance and a focus toward a potential watershed moment where they will recognize same-sex marriage in the same vein as they recognized interracial marriage in Loving under the umbrella right to marriage, a fundamental right already granted.  Justice Scalia’s dissent posses some interesting problems – and curious interpretations – in which he views us traveling down the rabbit hole into Wonderland where before us stands the “Jabberwock, with eyes of flame,” a creature of our own making.[63]  Fortunately, we have already faced and did slay that beast and now we can ready for the next battle towards recognition singing “O frabjous day! Callooh! Callay!”[64]

[1] United States v. Windsor, No. 12-307, 570 U.S. ___ (2013) (slip op.)


[2] Defense of Marriage Act, 110 Stat. 2419.


[3] Windsor, 570 U.S. ___ (2013) (slip op., at 2).  It should be noted here that Section 2, which focuses on conflict of laws and interstate recognition of marriages, is still enforceable and has not been struck down. Windsor, slip op., at 2 ; 28 U.S.C. §1738C


[4] 1 U.S.C. §7 [DOMA’s Section 3 amended the Dictionary Act in Title 1, §7 of the United States Code.]


[5] Windsor, slip op. at 1, 4-5, 26.


[6] Id., at 2-3


[7] Id., at 1, 2-3


[8] While standing is a valid concern – and necessary for the courts to hear a case – I am assuming that standing and all jurisdictional requirements have been met for future cases.  To worry about standing here would be to write a second article within an article.  The issue of standing vis-à-vis same-sex marriage as shown in Windsor and the other case decided on the same day, Hollingsworth v. Perry, No. 12-144, 570 U.S. ___ (2013) (slip op.), is in and of itself an article.  Therefore, the issue of standing is assumed for future litigation when future litigation is discussed in this article.


[9] Windsor, at 13-20 [federalism]  ; Id. at 20-26 [Due Process and Equal Protection]


[10] Windsor, slip op. Scalia dissent, 15.


[11] Id., slip op. at 14-15, 17. [“Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.” Id. slip op., at 17.]


[12] To be sure, the Federal Government has some control over domestic affairs and concerns.  Most notably is Congress’ control over immigration, Commerce, and labor and employment laws.  These aspects, however, have connections to the enumerated powers Congress enjoys under the Constitution.


[13] U.S. Const. amend. X.


[14] Windsor, slip op. at 17, 18-19.


[15] Id., at 16.  Indeed, these long held powers and authorities were surely present even in colonial times and under the Articles of Confederation.


For more examples of federalism issues, the following is a nonexclusive list of cases.  See eg., McCulloch v. Maryland, 17 U.S. 316 (1819). [The Court used the doctrine of implied powers, from the Necessary and Proper Clause, stating that the federal government may use any means the constitution does not forbid and that the State government may in no way hinder the legitimate action of the federal government] ; Cooley v. Board of Wardens, 53 U.S. 299 (1852) [The Court found that when local circumstances make it necessary the states may regulate interstate commerce, providing that such regulations do not conflict with federal law and Congress is silent on the matter.] ; U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). [The Court found that State law could not set term limits on members of Congress.] ; Gonzales v. Raich, 545 U.S. 1 (2005).  [The Court found that Congress may ban the use of marijuana even where states approve its use for medicinal purposes.]


[16] At the time of the commencement of the action in the United States District Court for the Southern District of New York, the State of New York did not allow same-sex marriages within its borders but did recognize marriages validly executed in jurisdictions that allowed same-sex marriage.  New York enacted legislation allowing same-sex marriage within its borders in July 2011.


[17] Windsor, slip op. at 18-19.


[18] See, Smith, The Flaws of Rational Basis with Bite, 73 Fordham L.Rev. 2769, 2771-2777 (2005).  [Smith’s article gives a thorough examination of the three levels of scrutiny for Equal Protection Analysis].


[19] Loving v. Virginia, 388 U.S. 1 (1967) ; See also, Lawrence v. Texas, 539 U.S. 558 (2003).


[20] Windsor, slip op. (Scalia, J. dissent. at 15).


[21] Windsor, at 20, 25 ; Windsor, Scalia, J. dissent at 17.


[22] Windsor, at 20.


[23] Id. at 21.


[24] Id. at 21 (citing H.R. Rep. No. 104-664, pp. 16 (1996).)  [While this quote may raise other concerns, such as the separation of church and state, the Court never discusses that.  The House Report, however, as quoted by the Court, does take into account traditional Judeo-Christian views of homosexuality when defining marriage.  Indeed, this is a long standing aspect of much of the same-sex marriage debate proffered by those opposing same-sex marriage.]


[25] Lawrence v. Texas,  539 U.S. 558, 577-578 (2003).

In Lawrence, Justice Kennedy’s majority opinion stated the following:

“The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers JUSTICE STEVENS came to these conclusions:

‘Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.’ 478 U. S., at 216 (footnotes and citations omitted).

JUSTICE STEVENS’ analysis, in our view, should have been controlling in Bowers and should control here.” Lawrence,  at 577-578.

Here, the majority adopted Justice Stevens’ dissent for their opinion.  By doing so, Justice Kennedy and the other Justices who joined the majority opinion adopted the morality discussion of Justice Stevens’ dissent by (1) including it in their analysis, and (2) stating that Justice Stevens’ dissent should control the Lawrence decision.  By so adopting this position, one that has been adopted previously, though mostly in dicta, the Court has stated that morality cannot be the basis of a law.  The Court has, however, found that a law based on morality may still have a rational basis and therefore would not be unconstitutional.  Under rational basis review, any legitimate government interest – even one the Court finds on its own – has been sufficient to uphold a statute. For more, see the citations below.

See also, Bowers v. Hardwick, (Stevens, J. dissent at 478 U.S. 186, 216 (1986) ;  Department of Agriculture v. Moreno, 413 U.S. 528, 534-535 (1973) [Perhaps the first example in which morality based legislation, which targeted “hippies” and “hippy communes” according to the legislative history, was admonished.  The Court in Moreno however never fully states that morality cannot be the basis of a law: “For if the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”] ;  Romer v. Evans, 517 U.S. 620 (1996).  [finding that Amendment 2 of the Colorado State Constitution restricting anti-discrimination legislation and initiatives for homosexuals unconstitutional]


[26] For more information of the inconsistent use of morality as a legitimate government interest in rational basis caselaw, see:  Daniel F. Piar, Morality as a Legitimate Government Interest., 117:1 Penn.State. L.Rev. 139. (2012). 


[27] Jeremy B. Smith, The Flaws of Rational Basis with Bite: Why the Supreme Court Should Acknowledge Its Application of Heightened Scrutiny to Classifications Based on Sexual Orientation., 73 Fordham L.Rev. 2769, 2770 (2005).  Available at: [Hereafter, “Smith, The Flaws of Rational Basis with Bite”]


[28] Romer v. Evans, 517 U.S. 620 (1996).


[29] Romer, 517 U.S. at 629, 632.


[30] But See., Susannah W. Pollvogt, Forgetting Romer 65 Stan. L. Rev. Online 86., ¶ 1, Section entitled “Romer and Doctrinal Appeasement”. (January 10, 2013)


Ms. Pollvogt suggests that the Romer decision was incoherent, not by fault, but because “[t]he decision was stuck between a rock and a hard place, the rock being the Court’s contemptible 1986 ruling in Bowers v. Hardwick and the hard place being the seven years that would have to pass post-Romer before the Court overturned Bowers in Lawrence v. Texas.”  The author continues to state that “In short, because Bowers essentially held that it was permissible for states to criminalize not only homosexual conduct, but also homosexual identity, the Romer Court had to perform analytical gymnastics to reach a pro-gay-rights outcome.”


[31] “We have attempted to reconcile the principle [of the Fourteenth Amendment’s promise] with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. 312, 319-320 (1993).”   Romer, 517 U.S. at 631.


[32] Romer, 517 U.S. at 632.


[33] Id, at 632.  See also, United States v. Carolene Prods. Co., 304 U.S. 1444, 152 n.4 (1938).  [“[P]rejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities” gives rise to the potential for a heightened scrutiny.]


[34] Id, at 632.   See also, United States v. Carolene Prods. Co., 304 U.S. 1444, 152 n.4 (1938).  [“[P]rejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities” gives rise to the potential for a heightened scrutiny.]


[35] Id, at 632.   See also, United States v. Carolene Prods. Co., 304 U.S. 1444, 152 n.4 (1938). 


[36] Windsor, slip op. at 16-17.


[37] Loving v. Virginia, 388 U.S. 1 (1967)


[38] Windsor, slip op. at 26.


[39] Smith, The Flaws of Rational Basis with Bite, 73 Fordham L.Rev. 2769 (2005). 


[40] Windsor, slip op. at 18


[41] Id. at 18.


[42] Id. at 25. [emphasis added.]


[43] Windsor, slip op. Scalia dissent, 15.


[44] Lawrence v. Texas,  539 U.S. 558, (2003).


[45] Windsor, slip op. Scalia dissent, 22.


[46] Windsor, slip op. Scalia dissent, 22.   The majority in Lawrence clearly stated what the case dealt with and what the majority holding was: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”  Nowhere in the entire opinion does the Court grant a liberty interest and right in homosexual sodomy.


[47] Lawrence, 529 U.S. at 578. 


[48] Lawrence, 529 U.S. at 578. 


[49] Windsor, slip op. at 23.


[50] Windsor, slip op. at 23. (emphasis added)


[51] Windsor, slip op., at 2 ; 28 U.S.C. §1738C.


[52] 28 U.S.C. §1738C ; See, U.S. Const. Article IV, §1. ; 28 U.S.C. §1738 [codifying Article IV, §1] ; Allen v. McCurry, 449 U.S. 90, 96 n.8 (1980). 

The United States Full Faith and Credit Clause demands that Full Faith and Credit be given by all state and federal courts to the decisions of courts issued previously.  The extent of the Full Faith and Credit Clause is limited only to judicial proceedings.  State legislative acts do not give rise to the Full Faith and Credit Clause, but may, as in the case of trust and estate law, probate, or marriage law, give rise to the recognition of a valid will or a valid marriage for example.  These, however, are generally statutory based or granted as part of a state’s conflict of laws rules which are implicated by a case at hand.  These also arise in New York as part of civil procedure and proper service.  See, N.Y. C.P.L.R. 313.  [granting service without the state to be completed either as it would be completed within the State or according to who is “authorized to make service by the laws of the state, territory, possession or country in which service is made.]


[53] Restatement (First) of Conflict of Laws §121 ; Restatement (Second) Conflict of Laws §283 ;  Albert A. Ehrenzweig, Treastise on the Conflict of Laws 138 (1962) ; In Re May’s Estate, 305 N.Y. 486, 114 N.E.2d 4 (1953) [a leading case in this area]


[54] Windsor, slip op. Scalia dissent at 19-20 (citations omitted). 


[55] Windsor, slip op. Scalia dissent at 20 (citations omitted). 


[56] Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages. National Conference of State Legislatures (NCSL), Common-Law Marriage, (retrieved July 15, 2013),


[57] Five states have “grandfathered” in common-law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order. National Conference of State Legislatures (NCSL), Common-Law Marriage, (retrieved July 15, 2013),


[58] Caitlin Stark and Amy Roberts, By the Numbers: Same-sex Marriage, (updated 4:29 PM EDT, Wed June 26, 2013),


[59] Caitlin Stark and Amy Roberts, By the Numbers: Same-sex Marriage, (updated 4:29 PM EDT, Wed June 26, 2013),


[60] IRS Publication 17, ¶ “Considered Married” (2012) (retrieved July 15, 2013)  [ “Considered married.   You are considered married for the whole year if on the last day of your tax year you and your spouse meet any one of the following tests. . . . You are living together in a common law marriage recognized in the state where you now live or in the state where the common law marriage began. . . .”]  See also, IRS, Married Filing a Joint Return, (retrieved July 15, 2013) ; “After DOMA What it Means for You” Federal Taxes. (retrieved July 15, 2013)


[61] See N59.  


[62] National Conference of State Legislatures (NCSL), State Laws Regarding Marriages Between First Cousins, (retrieved July 15, 2013),


[63] Lewis Carroll, “Jabberwocky” Available:


[64] Lewis Carroll, “Jabberwocky” Available:


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