DOMA: An Unconstitutional Establishment of Fundamentalist Christianity
James M. Donovan, DOMA: An Unconstitutional Establishment of Fundamentalist Christianity, 4(2) Mich. J. Gender & L. 335-373 (1997).
Abstract
Most analyses of DOMA direct their attentions to the constitutionality of the effects of this legislation: Does it violate the Equal Protection Clause of the Constitution? Does it transgress the Constitutional requirements of Due Process? Does DOMA grant states a power they did not already possess, namely, the power to ignore extraterritorial marriages?
This Article, however, takes a different approach and scrutinizes the constitutionality of the intent of DOMA. According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage,"" where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.
The tools to evaluate DOMA are provided by Lemon v. Kurtzman and Edwards v. Aguillard. In these cases, the Supreme Court has synthesized and systematized its thinking on the Establishment Clause, and the criteria by which a court may determine if it has been transgressed. Part I reviews the development of Establishment Clause jurisprudence through the articulation of the Lemon test. Part II describes the instructions the Supreme Court provided in Edwards v. Aguillard for applying the Lemon test. Part III submits DOMA to a Lemon analysis as interpreted by Aguillard, examining DOMA's legislative history as well as the current and historical contexts from which it arises.
