Who Decides? The Federal Architecture of DOMA and Comparative Marriage Recognition
Lynn D. Wardle, 𝘞𝘩𝘰 𝘋𝘦𝘤𝘪𝘥𝘦𝘴? 𝘛𝘩𝘦 𝘍𝘦𝘥𝘦𝘳𝘢𝘭 𝘈𝘳𝘤𝘩𝘪𝘵𝘦𝘤𝘵𝘶𝘳𝘦 𝘰𝘧 𝘋𝘖𝘔𝘈 𝘢𝘯𝘥 𝘊𝘰𝘮𝘱𝘢𝘳𝘢𝘵𝘪𝘷𝘦 𝘔𝘢𝘳𝘳𝘪𝘢𝘨𝘦 𝘙𝘦𝘤𝘰𝘨𝘯𝘪𝘵𝘪𝘰𝘯, 41 Cᴀʟ. W. Iɴᴛ’ʟ. L.J. 143 (2010).
Defense of Marriage Act, Federalism, Same-Sex Marriage, Separation of Powers
This article explores the important question of who decides when to recognize same-sex marriages, both on a state and federal government level. It examines the structure of DOMA, mainly focusing on the horizontal or interstate recognition section of the statute, although it does touch on the vertical section as well. In analyzing DOMA, it becomes apparent that the legislation reflects and respects the principles of federalism. It allows individual states to decide for themselves what domestic relationships they will recognize, protecting each state from the decisions of other states and federal judges. DOMA also protects the federal government, allowing it to decide who it will regulate marriage as well. The need for DOMA is even greater than when it was enacted because there are states that have legalized same-sex marriage.
41 Cal. W. Int’l. L.J.
California Western International Law Journal