This Article scrutinizes the constitutionality of the intent of the Defense of Marriage Act [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 marriage requires "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.
Donovan, James M., "DOMA: An Unconstitutional Establishment of Fundamentalist Christianity" (1997). Law Faculty Scholarly Articles. 447.