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Response from Alan E. Brownstein

Discussion Question: Defense of Marriage Act Unconstitutional?

President Barack Obama recently ordered the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which defines marriage as only between a man and woman. “Classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," said Attorney General Eric Holder, and the key provisions in the law "fails to meet that standard and is therefore unconstitutional." Do you agree with the administration that the act is unconstitutional (why or why not), and what, if any, implications may this have for religious liberty?


Given space constraints, let me briefly summarize my viewson the constitutionality of DOMA and the implications of DOMA being declared unconstitutional for religious liberty. (I should note initially that I am not an originalist. I believe the interpretation of the Constitution is, and ought to be, influenced by the collective experience of the American people over its 220 year history.)

In my judgment, DOMA is clearly unconstitutional. It violates both equal protection principles and the substantive due process right to marry. We need to be precise, however, about the consequences of striking down this federal law. The direct and immediate impact of invalidating DOMA would be that the federal government can no longer deny hundreds of valuable material benefits to same-sex couples who are lawfully married in their state of residence. Invalidating DOMA will NOT mean that states are required immediately to recognize the marriage of same-sex couples or even to recognize same-sex marriages entered into in other jurisdictions.

The constitutional arguments that justify striking down DOMA, described below, may well influence judicial decisions evaluating state laws that limit the institution of marriage exclusively to opposite-sex couples,while extending all the material benefits of marriage to same-sex couples who register as domestic partners. I believe these arguments are sufficient to justify the invalidation of state laws restricting marriage to opposite-sex couples. Others may disagree and argue that while discrimination in the provision of tangible benefits would violate the Constitution, reserving the label or status of marriage for opposite-sex couples should withstand constitutional challenge.

The right to marry is a basic liberty right that guarantees adult individuals the freedom to choose the person with whom they want to share their lives in a monogamous relationship defined by mutual love, caring, responsibility and exclusive sexual intimacy. Like all other basic liberty rights, such as the right to speak, to worship, to have children, and to vote, we do not reserve this right for only those people who will exercise it in a way that meets the majority's approval. Indeed, the very idea of rights presupposesthe autonomy to make decisions that are contrary to the majority's demands and values. Our Constitution is not limited to only protecting what the majority believes is the best speech or religion or marital relationships.

The Equal Protection Clause provides another compelling basis for invalidating DOMA. It requires the application of heightened scrutiny– that is, very rigorous and skeptical review -- to laws that discriminate against the members of a suspect class or quasi-suspect class. To be recognizedas a suspect class, a group must satisfy several criteria. Most importantly, the group must have suffered a history of invidious discrimination. Gays and lesbians have been victimized by unconscionable prejudice. The characteristic used to define the class must be largely irrelevant to most legitimate lawful purposes. A person's sexual orientation tells us nothing about their vocational skills, trustworthiness, patriotism, honesty or a host of other qualities and abilities. The characteristic must be one that is impossible or at least very difficult to change. Clearly, sexual orientation satisfies that criteria. Finally, the class must be a minority (or otherwise lack the political power to adequately protect itself against oppression). Gays and lesbians are a minority invirtually every jurisdiction in which they live. While they have some political power in some jurisdictions, this is true for almost every other group that is protected under Equal Protection principles including women and African-Americans as well as groups defined by national ancestry and religion.

If a law violates a liberty or equality right, as DOMA does, the law must be struck down unless it is narrowly tailored to serve an important state interest. DOMA does not narrowly further any important state interest. The most commonly asserted justification for DOMA is fostering procreation and providing a social structure for raising children. This argument is unpersuasive for too many reasons to discuss here. Certainly, by promoting loving, long term monogamous relationships, the institution of marriage serves many important interests that are unrelated to having children. Indeed, the population of Americans for whom non-procreative marriage is a meaningful possibility is extremely large. For most people, child bearing does not occur after the age of 50. Tens of millions of Americans are too old to have children. Many people in this age bracket (often because of death or divorce) are unmarried. Does anyone seriously believe that the marriages of older Americans serve no important purposes or that the government would be justified in refusing to recognize these marriages because they will not produce children?

As to the implications of the invalidation of DOMA for religious liberty, I believe that the consequences of doing so have been exaggerated. Some problems may arise that will require accommodations ofindividuals and institutions that object to same-sex marriage on religiousgrounds. A summary of my views on this issue are available in an article published in the May/June 2009 issue of Liberty, "Coexistent Rights: Same-sex Marriage and Religious Liberty." A much longer and scholarly analysis, Gay, Jews and Other Strangers in a Strange Land: The Case for Reciprocal Accommodation of Religious Liberty and the Right of Same-Sex Couples to Marry, is available at http://ssrn.com/abstract 1725610.

Photo of Alan E. Brownstein

Author: Alan E. Brownstein

Alan E. Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law. While the primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, he has also written extensively on freedom of speech, privacy and autonomy rights, and other constitutional law subjects. His articles have been published in numerous academic journals, including the Stanford Law ReviewCornell Law Review,UCLA Law Review and ConstitutionalCommentary. In 2008, Liberty was privileged to recognize Professor Brownstein for his passion and dedication to religious freedom at its annual Religious Liberty Dinner in Washington, D.C.

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