The Constitutionality of the Defense of Marriage Act in the Wake of Romer v. Evans

I.  Introduction

At midnight on September 21, 1996, President Clinton signed the Defense of Marriage Act (DOMA).⁽¹⁾ DOMA declares that states do not have to give full faith and credit to marriages of same-sex couples⁽²⁾ performed in other states, and also provides that the federal government will not recognize such marriages.⁽³⁾ The President chose to sign DOMA in the middle of the night in an effort "to minimize public attention and contain any political damage just forty-five days before the election."⁽⁴⁾ DOMA had put Clinton in an election-year dilemma.⁽⁵⁾ As the first president to make campaign promises in support of gay and lesbian equal rights,⁽⁶⁾ Clinton did not want to anger his gay and lesbian constituents.⁽⁷⁾ At the same time, however, he did not want to appear too extreme when the opinion polls had shown that the American public did not approve of marriages between persons of the same sex.⁽⁸⁾

DOMA was introduced in Congress in response to a Hawaii Supreme Court decision, Baehr v. Lewin,⁽⁹⁾ which will most likely result in the legalization of marriages between persons of the same sex in Hawaii.⁽¹⁰⁾ Hawaii will be the first state in the history of the United States to allow marriages of same-sex couples,⁽¹¹⁾ and the United States will be the first country to allow same-sex couples to marry.⁽¹²⁾ Baehr held that Hawaii's ban on marriages of same-sex couples was presumed unconstitutional unless the state could show that the classification was justified by a compelling state purpose.⁽¹³⁾ The case was remanded to the trial court, which declared that Hawaii must allow marriages of same-sex couples because the state failed to show that its ban on such marriages furthered a compelling state interest.⁽¹⁴⁾ The state has appealed, and the trial court placed a stay on its order while the appeal is pending.⁽¹⁵⁾ It is believed, however, that the Hawaii Supreme Court will affirm the trial court's ruling.⁽¹⁶⁾

Congress declared that the purpose of DOMA is to deter other states from being compelled to recognize marriages of same-sex couples that were contracted in Hawaii,⁽¹⁷⁾ and to prevent married same-sex couples from becoming eligible for federal entitlements.⁽¹⁸⁾ While Congress was considering DOMA in May of 1996, gays and lesbians won a major victory in the United States Supreme Court.⁽¹⁹⁾ In Romer v. Evans,⁽²⁰⁾ the United States Supreme Court ruled that Colorado's Amendment 2 was unconstitutional under the Equal Protection Clause.⁽²¹⁾ Amendment 2 was a statewide referendum that amended the Colorado Constitution.⁽²²⁾ It repealed Colorado's anti-discrimination laws to the extent that they prohibited discrimination on the basis of sexual orientation, and further barred all branches of government from passing or enforcing anti-discrimination laws on behalf of gays and lesbians.⁽²³⁾ The Romer decision has generated discussion on whether DOMA is constitutional under the equal protection component of the Fifth Amendment's Due Process Clause.⁽²⁴⁾

While many have argued that DOMA is unconstitutional under the Full Faith and Credit Clause,⁽²⁵⁾ the purpose of this Note is to analyze the constitutionality of DOMA under the equal protection component of the Fifth Amendment's Due Process Clause in the wake of Romer v. Evans.⁽²⁶⁾ As mentioned earlier, DOMA has two components.⁽²⁷⁾ Only one component (the section asserting that states do not have to recognize marriages of same-sex couples performed in other states) was passed under Congress' Full Faith and Credit Clause power.⁽²⁸⁾ Therefore, a Full Faith and Credit argument alone will not be sufficient to challenge both sections of DOMA--additional constitutional arguments will have to be made.⁽²⁹⁾ This Note will analyze both sections of DOMA under Romer v. Evans.⁽³⁰⁾

Part II.A of this Note provides an overview of equal protection analysis.⁽³¹⁾ Part II.B begins with a background discussion on the Baehr decision, while Part II.C continues with a discussion of its national significance.⁽³²⁾ Part II.D examines the legislative history of DOMA,⁽³³⁾ and Part II.E discusses the Romer decision.⁽³⁴⁾ Part III.A analyzes the similarities between DOMA and Romer.⁽³⁵⁾ Part III.B analyzes the government interests advanced by Congress in support of DOMA under the rational basis test.⁽³⁶⁾ Part IV concludes that DOMA is unconstitutional under the equal protection component of the Fifth Amendment's Due Process Clause in light of the Romer decision.⁽³⁷⁾

II.  Background

A.  An Overview of Equal Protection Analysis

The Fifth Amendment's Due Process Clause provides that "no person shall . . . be deprived of life, liberty, or property, without due process of law."⁽³⁸⁾ Although this clause does not have an explicit equal protection component, it forbids discrimination by the federal government that is "so unjustifiable as to be violative of due process."⁽³⁹⁾ Equal protection analysis under the Fifth Amendment is equivalent to that under the Equal Protection Clause of the Fourteenth Amendment,⁽⁴⁰⁾ which provides that, "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws."⁽⁴¹⁾

When government action is challenged under an equal protection claim, the courts will usually apply one of following tests: strict scrutiny, intermediate scrutiny, or rational basis.⁽⁴²⁾ As the Supreme Court stated in Cleburne v. Cleburne Living Center, Inc.,⁽⁴³⁾ "[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest."⁽⁴⁴⁾ Under "rational basis" analysis, the Court will usually exercise "extreme deference to the legislative definition of the [state interest]."⁽⁴⁵⁾ This exercise of deference gives way, however, if intermediate or strict scrutiny is triggered.⁽⁴⁶⁾

Classifications based on race, national origin, and alienage are "suspect" and subject to strict scrutiny analysis.⁽⁴⁷⁾ Under the strict scrutiny test, the government action must be strictly tailored to a compelling state interest.⁽⁴⁸⁾ Classifications based on gender and illegitimacy are "quasi-suspect" and trigger intermediate scrutiny.⁽⁴⁹⁾ Under the intermediate scrutiny test, the classification must substantially further an important state interest.⁽⁵⁰⁾ The United States Supreme Court has declined to extend intermediate or strict scrutiny to classifications based on age and mental retardation, subjecting these classifications to rational basis review.⁽⁵¹⁾ The Court has not determined the level of scrutiny that will be applied to classifications based on sexual orientation.⁽⁵²⁾ A court will usually consider the following three factors when determining whether government classifications based on a particular group should be subject to intermediate or strict scrutiny: immutability, political powerlessness, and the history of discrimination against the group.⁽⁵³⁾

B.  Baehr v. Lewin: The Legalization of Marriages Between Persons of the Same Sex in Hawaii

In May of 1993, the Supreme Court of Hawaii, in Baehr v. Lewin,⁽⁵⁴⁾ held that Hawaii's marriage law,⁽⁵⁵⁾ which had been interpreted only to recognize marriages of opposite-sex couples, was "presumed to be unconstitutional."⁽⁵⁶⁾ This presumption would stand unless the Hawaii Department of Health (DOH) could show that the statute's sex-based classification was justified by a compelling state interest, and that it was narrowly drawn.⁽⁵⁷⁾ In Baehr, the plaintiffs, three same-sex couples, applied for marriage licenses with DOH, which denied the applications solely because the applicant-couples were of the same sex.⁽⁵⁸⁾ Although the statute did not explicitly prohibit marriages of same-sex couples, DOH construed the statute as such.⁽⁵⁹⁾ The plaintiffs filed a complaint in the Hawaii Circuit Court alleging that the statute, as construed by DOH, violated the plaintiffs' right to privacy, due process and equal protection of the law as guaranteed by the Hawaii Constitution.⁽⁶⁰⁾ DOH filed a motion for judgment on the pleadings, arguing that the "plaintiffs complaint failed to state a claim upon which relief could be granted."⁽⁶¹⁾ The circuit court granted the motion and entered judgment for DOH.⁽⁶²⁾

The Hawaii Supreme Court vacated the lower court's decision and remanded the case for trial.⁽⁶³⁾ In an opinion written by Judge Levinson, the plurality⁽⁶⁴⁾ held that the plaintiffs did not have a fundamental right to marriage arising from their right to privacy.⁽⁶⁵⁾ But, they still had a claim under the equal protection clause of Hawaii's Constitution.⁽⁶⁶⁾ Instead of analyzing the case under the proposition that the statute discriminated based on sexual orientation,⁽⁶⁷⁾ the plurality decided that because the statute "deni[ed] same-sex couples access to the marital status" the State's regulation of marriage was based on the plaintiffs' sex.⁽⁶⁸⁾

DOH argued that the denial of marriages to same-sex couples under the Hawaii statute was not the product of discrimination, but due to the couples' biological inability to marry.⁽⁶⁹⁾ The plurality considered DOH's argument to be circular and unpersuasive.⁽⁷⁰⁾ It declined to follow cases that DOH had used to support its argument,⁽⁷¹⁾ and relied on Loving v. Virginia⁽⁷²⁾to demonstrate why DOH's arguments were unpersuasive.⁽⁷³⁾

In Loving, the United States Supreme Court held that a statute which criminalized interracial marriages was unconstitutional under the Equal Protection Clause.⁽⁷⁴⁾ The trial court in Loving concluded that an interracial marriage could not exist because the Deity had deemed such a union to be unnatural, and it was against state custom because the state had never recognized mixed marriages.⁽⁷⁵⁾ The United States Supreme Court decided that the Virginia antimiscegenation laws "rest[ed] solely upon distinctions according to race. . . . [and that] [t]here [was] patently no legitimate overriding purpose independent of invidious racial discrimination which justifi[ed] this classification."⁽⁷⁶⁾

In Baehr, the plurality decided that DOH's argument was similar to the trial court's reasoning in Loving.⁽⁷⁷⁾ It opined that DOH's argument (that Hawaii's denial of marriage to same-sex couples is not unconstitutional because "same-sex marriage is an innate impossibility") was analogous to the trial court's rationale in Loving ("that interracial marriage simply could not exist because the Deity had deemed such a union intrinsically unnatural").⁽⁷⁸⁾ As such, the plurality rejected DOH's argument because it was "tautological and circular."⁽⁷⁹⁾ It concluded, "we do not believe that trial judges are the ultimate authorities on the subject of Divine Will, and, as Loving amply demonstrates, constitutional law may mandate, like it or not, that customs change with an evolving social order."⁽⁸⁰⁾ The plurality then held that sex is a "suspect category" for purposes of equal protection analysis under the Hawaii Constitution, and, as such, the Hawaii marriage statute was subject to strict scrutiny analysis.⁽⁸¹⁾

In a separate opinion, Judge Burns concurred in the result and explained that the circuit court erroneously granted DOH's motion for judgment on the pleadings because the case involved "genuine issues of material fact."⁽⁸²⁾ He agreed with the plurality that the denial of equal protection under the law based on sex triggers strict scrutiny analysis under Hawaii's Constitution.⁽⁸³⁾ Judge Burns explained that the word "`sex' includes all aspects of [a] person's sex that are `biologically fated,'" so it is necessary to determine whether homosexuality is an immutable characteristic.⁽⁸⁴⁾ According to Judge Burns, if a person's heterosexuality, homosexuality, or bisexuality is immutable, then the word "sex" includes sexual orientation and the Hawaii marriage law is probably unconstitutional; however, if a person's sexual orientation is not immutable, then the statute is constitutionally sound.⁽⁸⁵⁾

Judge Heen's dissenting opinion⁽⁸⁶⁾ stressed that the Loving opinion did not establish the right to marriage between persons of the same-sex, nor limit a state's authority to prohibit such marriages.⁽⁸⁷⁾ According to Judge Heen, the plaintiffs were not denied the status of marriage based on sex, rather they were denied marital status because marriage is a union between two persons of the opposite sex.⁽⁸⁸⁾ He opined that the Hawaii marriage law did not establish a suspect category because both sexes were being treated equally--a woman could not marry another woman, and a man could not marry another man.⁽⁸⁹⁾ Therefore, Judge Heen asserted that the statute should be analyzed under the "rational basis" test.⁽⁹⁰⁾ Under the rational basis test, he concluded, the statute was constitutional because it rationally furthered the legitimate state interest of "fostering and protecting" procreation through a heterosexual marriage.⁽⁹¹⁾

On May 17, 1993, DOH filed a motion for reconsideration or clarification, which was granted in part and denied in part.⁽⁹²⁾ The Hawaii Supreme Court's mandate on remand was as follows: DOH had the burden of overcoming the presumption that the Hawaii marriage law was unconstitutional by showing that it was narrowly drawn to a compelling state interest.⁽⁹³⁾ After the Baehr decision, Judge Nakayama became a Hawaii Supreme Court Judge, and joined Judges Levinson, Moon, and Burns in the decision on the motion for reconsideration or clarification.⁽⁹⁴⁾ As a result, it is understood that what was once a plurality is now a majority.⁽⁹⁵⁾

On remand, the trial court ruled that Hawaii must allow marriages between persons of the same sex, because the state interests advanced by DOH were not compelling.⁽⁹⁶⁾ The State appealed to the Hawaii Supreme Court, and the trial court placed a stay on its ruling while the appeal is pending.⁽⁹⁷⁾

C.  The National Significance of Baehr v. Lewin

1.  Baehr's Impact on State Law: The Full Faith and Credit Clause and Choice-of-Law Rules

If marriages of same-sex couples are legalized in Hawaii, and a same-sex couple who was married in Hawaii moves or travels to another state, the question will be whether that couple's marriage will be legally recognized in other states. The issue is a choice-of-law problem because the forum state must decide which law governs--Hawaii's or the forum state's.⁽⁹⁸⁾ This question will most likely arise when the couple's marriage is not recognized by some entity (such as, a health insurance company, a state agency, or a court) when the couple tries to obtain a marriage benefit, seeks a divorce, or when one spouse dies.⁽⁹⁹⁾ In Baehr v. Lewin,⁽¹⁰⁰⁾ the court listed fourteen significant benefits that are accorded to married persons under Hawaii state law.⁽¹⁰¹⁾ The denial of any of these benefits could become the impetus for a marriage choice-of-law case.⁽¹⁰²⁾

The Full Faith and Credit Clause of the United States Constitution provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."⁽¹⁰³⁾ The Clause's main function has been to require states to give full faith and credit to sister states' judgments, but such deference has not always been required with regard to sister states' laws.⁽¹⁰⁴⁾ The United States Supreme Court has not rendered an opinion on the manner in which states must recognize out-of-state marriages under the Full Faith and Credit Clause.⁽¹⁰⁵⁾ Therefore, the question remains whether states would be mandated to recognize out-of-state marriages of same-sex couples under the Full Faith and Credit Clause.⁽¹⁰⁶⁾ As such, for more than two centuries, the states have resolved conflicts between state marriage laws.⁽¹⁰⁷⁾ The following approaches demonstrate how different states may resolve this issue.

The overwhelming presumption usually followed by states is to recognize out-of-state marriages.⁽¹⁰⁸⁾ Courts will usually decide a marriage-conflicts case by using the lex celebrationis--"deciding questions about the validity of the marriage under the law where the marriage was celebrated."⁽¹⁰⁹⁾ This rule of celebration falls in line with the first Restatement of Conflict of Laws, which announces that a marriage valid where celebrated is valid everywhere.⁽¹¹⁰⁾ Under section 132 of the Restatement, however, a marriage is invalid if it is prohibited by the couple's state of domicile, even if the marriage is legitimate in the state of celebration.⁽¹¹¹⁾

The Restatement (Second) of Conflict of Laws takes a somewhat different approach from the First Restatement.⁽¹¹²⁾ The Second Restatement asserts that "[t]he validity of a marriage will be determined by the local law of the state which . . . has the most significant relationship to the spouses . . . ."⁽¹¹³⁾ Furthermore, under the Second Restatement, if a marriage satisfies the requirements of the state where the marriage was performed, it will be considered a valid marriage everywhere unless it conflicts with a "strong public policy" of the state "which had the most significant relationship to the spouses at the time of the marriage."⁽¹¹⁴⁾ But, the denial of recognition based on the public policy exception "runs afoul . . . of . . . the general policy of upholding a marriage whenever possible."⁽¹¹⁵⁾ As such, "the controlling issue becomes whether the policy of prohibition . . . is strong enough . . . to prevail over the policies furthered by upholding the marriage."⁽¹¹⁶⁾ When faced with this issue, most courts have validated the out-of-state marriage.⁽¹¹⁷⁾

Under the Second Restatement,⁽¹¹⁸⁾ Professor Barbara Cox suggests that a court would first look at the forum state's marriage laws when determining whether an out-of-state marriage is valid.⁽¹¹⁹⁾ Many states have adopted the Uniform Marriage and Divorce Act,⁽¹²⁰⁾ which requires the recognition of out-of-state marriages.⁽¹²¹⁾ These states, however, can usually fall back on the argument that marriages of same-sex couples conflict with the state's strong public policy.⁽¹²²⁾ The United States Supreme Court has recognized that, in certain circumstances, a forum state's public policy may allow the forum state to deny recognition of another state's laws;⁽¹²³⁾ but again, the Court has not decided these questions regarding the status of marriage.⁽¹²⁴⁾ States that have laws prohibiting marriages of same-sex couples will most likely rely on these laws to argue that such marriages violate the public policy of the state.⁽¹²⁵⁾ In response to the legalization of marriages between persons of the same sex in Hawaii, many states have passed laws prohibiting marriages of same-sex couples.⁽¹²⁶⁾

In addition to the Uniform Marriage and Divorce Act, a small number of states have enacted marriage evasion statutes.⁽¹²⁷⁾ These statutes consider marriages, which are prohibited by their state and are contracted by their residents in another state, to be null and void.⁽¹²⁸⁾ Therefore, if a same-sex couple's domicile has a marriage evasion statute, and that couple gets married out-of-state and then returns to their domicile, the issue will be whether the couple "contracted a marriage that was prohibited in their home state."⁽¹²⁹⁾ According to Professor Cox, earlier case law suggests that states must have "an express prohibition in the positive law of the state before the evasion statute's language would become relevant."⁽¹³⁰⁾ If this case law is followed, states that have marriage evasion statutes without laws expressly prohibiting marriages of same-sex couples may have to validate such marriages.⁽¹³¹⁾ Behind all of these approaches, however, the essential question still remains unanswered: whether the public policy exception and marriage evasion statutes are constitutional under the Full Faith and Credit Clause.⁽¹³²⁾

2.  Baehr's Impact on Federal Law

Under federal law, there are a vast number of rights and benefits that are accorded to marriages of opposite-sex couples, such as filing joint income taxes, social security benefits, immigration rights, and veterans' benefits.⁽¹³³⁾ Before DOMA, married same-sex couples would have been eligible for these federal rights and benefits.⁽¹³⁴⁾

D.  Legislative History of the Defense of Marriage Act

In response to the Baehr decision's potential effect on state and federal law, Congress passed the Defense of Marriage Act (DOMA).⁽¹³⁵⁾ DOMA was sponsored in the House of Representatives by Bob Barr, a Republican from Georgia, and in the Senate by Don Nickles, a Republican from Oklahoma.⁽¹³⁶⁾ DOMA amends two titles of the United States Code.⁽¹³⁷⁾ Section 2 of DOMA amends Title 28 by declaring that states are not required to recognize marriages of same-sex couples that were contracted in another state.⁽¹³⁸⁾ Congress passed Section 2 by "invoking [its] congressional authority under the second sentence of the Full Faith and Credit Clause."⁽¹³⁹⁾ The Full Faith and Credit Clause reads: "[f]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof."⁽¹⁴⁰⁾ Congress asserted that, under the second sentence of this clause, they had the power to pass a law which provides that a state's laws may have no effect on the other forty-nine states.⁽¹⁴¹⁾ Many legal scholars, however, disagree with this reading of the Full Faith and Credit Clause.⁽¹⁴²⁾

Section 3 of DOMA amends Title 28 by defining marriage as a legal union between a man and a woman.⁽¹⁴³⁾ The House passed the bill by a vote of 342-67 on July 12, 1996,⁽¹⁴⁴⁾ and it was passed by the Senate by a vote of 85-14 on September 10, 1996.⁽¹⁴⁵⁾ The bill was signed by the President on September 21, 1996.⁽¹⁴⁶⁾ Congress declared that DOMA advances the following interests: (1) protecting the institution of traditional, heterosexual marriage; (2) advancing traditional notions of morality; (3) protecting state sovereignty; and (4) preserving scarce federal resources.⁽¹⁴⁷⁾

First, proponents of DOMA argued that throughout history, society has recognized marriage as a union between a man and a woman, and that such relationships are the foundation of a stable, healthy society.⁽¹⁴⁸⁾ Additionally, members of Congress claimed that a heterosexual marriage fosters procreation,⁽¹⁴⁹⁾ and establishes the "best environment" for children "to grow and learn."⁽¹⁵⁰⁾ According to Congressman Barr of Georgia, the legalization of marriage between persons of the same sex in Hawaii was an "assault by homosexual extremists [against] the institution of marriage."⁽¹⁵¹⁾ Members of Congress suggested that this change would lead to polygamous and incestuous marriages--there would be no limit.⁽¹⁵²⁾ Therefore, the proponents maintained that DOMA was necessary because the legitimization of same-sex unions would weaken the traditional family, and undermine the foundations of American society.⁽¹⁵³⁾

Second, the proponents insisted that Congress should act in order to maintain traditional notions of morality.⁽¹⁵⁴⁾ Congressman Buyer of Indiana argued that the Deity defined marriage as a union between a man and a woman, and DOMA was necessary in order to protect "[t]hat God-given principle."⁽¹⁵⁵⁾ Additionally, Congressman Smith of Texas claimed that DOMA was "morally necessary" because marriages of same-sex couples "legitimize unnatural and immoral behavior."⁽¹⁵⁶⁾

Third, the proponents argued that DOMA was necessary in order to preserve state sovereignty.⁽¹⁵⁷⁾ Congressman Largent of Oklahoma asserted that when marriage of same-sex couples is legalized in Hawaii, many gays and lesbians would travel to Hawaii to get married and then demand that their home state recognize their marriages.⁽¹⁵⁸⁾ According to the proponents, many states, which do not want to recognize marriages of same-sex couples, may be compelled to do so under the Full Faith and Credit Clause.⁽¹⁵⁹⁾ Congressman Largent asserted that DOMA would allow such states to invalidate marriages of same-sex couples, and, therefore, would prevent confusion and litigation.⁽¹⁶⁰⁾ The proponents argued that it was undemocratic for a small number of judges from one state to impose the recognition of marriages between persons of the same sex couples on other states, and, as such, members of Congress claimed that DOMA protects states' rights.⁽¹⁶¹⁾

Finally, the proponents claimed that DOMA was necessary in order to preserve scarce government resources.⁽¹⁶²⁾ They argued that DOMA was imperative because, when marriage of same-sex couples is legalized in Hawaii, married gays and lesbians would become eligible for many federal benefits,⁽¹⁶³⁾ costing the federal government millions of dollars.⁽¹⁶⁴⁾ Members of Congress asserted that because the majority of Americans are opposed to marriages of same-sex couples, it does not seem fair to spend their tax dollars on such marriages.⁽¹⁶⁵⁾

Members of Congress who were opposed to DOMA made several arguments against the Act.⁽¹⁶⁶⁾ They asserted the following: that DOMA was unnecessary;⁽¹⁶⁷⁾ that it was an unconstitutional use of the Full Faith and Credit Clause;⁽¹⁶⁸⁾ that it undercuts states' rights;⁽¹⁶⁹⁾ that marriages of same-sex couples do not threaten marriages of opposite-sex couples;⁽¹⁷⁰⁾ and that DOMA was nothing more than an election-year ploy⁽¹⁷¹⁾ motivated by animosity toward gays and lesbians.⁽¹⁷²⁾

E.  Romer v. Evans

The recent decision of Romer v. Evans⁽¹⁷³⁾ has enhanced the debate over whether DOMA is constitutional under the equal protection component of the Fifth Amendment's Due Process Clause.⁽¹⁷⁴⁾ In Romer, the United States Supreme Court held that Amendment 2⁽¹⁷⁵⁾ to Colorado's Constitution was unconstitutional under the Equal Protection Clause.⁽¹⁷⁶⁾ Amendment 2 repealed several municipal ordinances to the extent that they prohibited discrimination on the basis of sexual orientation, and further banned "all legislative, executive or judicial action designed to protect" gays and lesbians.⁽¹⁷⁷⁾

Amendment 2 was adopted in 1992 by a statewide referendum.⁽¹⁷⁸⁾ The referendum followed the enactment of several city ordinances in Colorado, which banned discrimination based on certain characteristics, such as race, national origin, religion, sex, age, disability, and sexual orientation.⁽¹⁷⁹⁾ The ordinances prohibited discrimination in various areas, such as employment, education, housing, and public accommodations.⁽¹⁸⁰⁾ The inclusion of the word "sexual orientation" in these ordinances initiated the campaign to pass Amendment 2.⁽¹⁸¹⁾

After Amendment 2 was passed, several gay and lesbian citizens of Colorado and the municipalities of Denver, Aspen, and Boulder sued the State of Colorado, claiming that Amendment 2 was invalid.⁽¹⁸²⁾ The trial court granted a preliminary injunction to withhold enforcement of the amendment, and the decision was appealed to the Colorado Supreme Court.⁽¹⁸³⁾ The Colorado Supreme Court affirmed the lower court's injunction and held that the strict scrutiny test applied to Amendment 2 under the Fourteenth Amendment of the United States Constitution because Amendment 2 denied gays and lesbians their fundamental right to participate in the political process.⁽¹⁸⁴⁾ The trial court, finding the State's arguments inadequate under the strict scrutiny test, invalidated Amendment 2,⁽¹⁸⁵⁾ and the Colorado Supreme Court affirmed.⁽¹⁸⁶⁾

The United States Supreme Court upheld the Colorado Supreme Court's decision, but under a different rationale.⁽¹⁸⁷⁾ The Court began its analysis by rejecting Colorado's main argument in defense of Amendment 2.⁽¹⁸⁸⁾ The State argued that Amendment 2 "puts gays and lesbians in the same position as all other persons. . . . [T]he measure d[id] no more than deny homosexuals special rights."⁽¹⁸⁹⁾ In response to this argument, the Supreme Court relied upon the findings of the Colorado Supreme Court, which stated that "`[t]he "ultimate effect" of Amendment 2 [was] to prohibit any governmental entity from adopting [anti-discrimination laws or policies on behalf of gays and lesbians] in the future unless the state constitution is first amended to permit such measures.'"⁽¹⁹⁰⁾ The United States Supreme Court determined that this change in the legal status of gays and lesbians was "sweeping and comprehensive" because Amendment 2 put them "in a solitary class with respect to transactions and relations in both the private and governmental spheres."⁽¹⁹¹⁾ The Court stated that the amendment "withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies."⁽¹⁹²⁾ Contrary to the argument that Amendment 2 simply withdraws "special rights" from gays and lesbians, the Court concluded that "the amendment impos[ed] a special disability on those persons alone."⁽¹⁹³⁾ The Court stated, "[w]e find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them. . . ."⁽¹⁹⁴⁾

Furthermore, the Court decided that Amendment 2 failed the most conventional constitutional inquiry: rational basis review.⁽¹⁹⁵⁾ Amendment 2 failed this inquiry for two reasons. First, the amendment's "peculiar property of imposing a broad and undifferentiated disability on a single named group, [was] an exceptional and . . . invalid form of legislation."⁽¹⁹⁶⁾ Second, Amendment 2's "sheer breadth [was] so discontinuous with the reasons offered for it that [it] seem[ed] inexplicable by anything but animus toward the class it affect[ed]; it lack[ed] a rational relationship to legitimate state interests."⁽¹⁹⁷⁾

On the first point, the Court determined that Amendment 2 was "at once too narrow and too broad. It identifie[d] persons by a single trait and then denie[d] them protection across the board."⁽¹⁹⁸⁾ The Court stressed that this type of legislation was unprecedented, and "`discriminations of an unusual character'" should be carefully reviewed.⁽¹⁹⁹⁾ The Court explained that a law of this sort is a per se violation of the Equal Protection Clause.⁽²⁰⁰⁾

Second, the Court concluded that Amendment 2 was not "directed to any identifiable legitimate purpose or discrete objective," and, that "the disadvantage imposed [was] born of animosity toward the class of persons affected."⁽²⁰¹⁾ The state argued that Amendment 2 was justified because it furthered the interests of "respect[ing] . . . other citizens' freedom of association, [particularly] the liberties of landlords or employers who have personal or religious objections to homosexuality [and] conserving resources to fight discrimination against other groups."⁽²⁰²⁾ The Court, however, determined that Amendment 2 could not be justified because it subjected gays and lesbians to "immediate, continuing, and real injuries that outr[an] and belie[d] any legitimate justifications that may [have been] claimed for it."⁽²⁰³⁾

Therefore, the Court concluded that Amendment 2 was motivated by animosity toward gays and lesbians, and that "`[i]f the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate government interest.'"⁽²⁰⁴⁾

The dissenting opinion, written by Justice Scalia and joined by the Chief Justice Rehnquist and Justice Thomas, began by stating that the majority has "mistaken a Kulturkampf⁽²⁰⁵⁾ for a fit of spite."⁽²⁰⁶⁾ Justice Scalia stated that Amendment 2 passed the rational basis test because the amendment further[ed] the legitimate interest of preserving "traditional sexual mores against the efforts of a politically powerful minority to revise those mores through the use of laws."⁽²⁰⁷⁾ Justice Scalia argued that the Supreme Court, in Bowers v. Hardwick,⁽²⁰⁸⁾ has upheld this purpose before.⁽²⁰⁹⁾ In Bowers, the Court held that the fundamental right of privacy does not extend to consensual homosexual sodomy.⁽²¹⁰⁾ Justice Scalia asserted that the majority contradicted the Bowers decision, and placed "opposition to homosexuality" in the same category as racial or religious bias.⁽²¹¹⁾ According to Justice Scalia, under Bowers, there is a rational basis for the "prohibition of special protection for homosexuals."⁽²¹²⁾ Because Bowers held that a state may criminalize homosexual conduct,⁽²¹³⁾ Justice Scalia maintained that it was definitely constitutional for a state to pass laws "merely disfavoring homosexual conduct."⁽²¹⁴⁾

Additionally, Justice Scalia agreed with the state's argument that Amendment 2 "does no more than deny homosexuals special rights."⁽²¹⁵⁾ By viewing anti-discrimination laws as laws that provide "preferential treatment," Scalia insisted that the amendment "prohibit[ed] special treatment of homosexuals, and nothing more."⁽²¹⁶⁾

III.  Analysis

A.  Similarities Between Romer and DOMA

1.  DOMA Places a Broad Disability on a Single Group

In Romer, the Court explained that Amendment 2 was unconstitutional because it "ha[d] the peculiar property of imposing a broad and undifferentiated disability on a single named group."⁽²¹⁷⁾ The Court stated further, "[Amendment 2] is at once too narrow and too broad. It identifie[d] persons by a single trait and then denie[d] them protection across the board."⁽²¹⁸⁾ Similarly, DOMA singles out gays and lesbians by denying federal benefits to marriages of same-sex couples only,⁽²¹⁹⁾ and by providing that states are not required to recognize such marriages performed out-of-state.⁽²²⁰⁾ Professor Cass Sunstein described the parallels between Romer and DOMA when testifying before the Senate Judiciary Committee.⁽²²¹⁾ He stated, "like the Colorado amendment, [DOMA] is drawn explicitly in terms of sexual orientation."⁽²²²⁾

Furthermore, in Romer, the Court said that Amendment 2's nullification and prohibition of laws that proscribe discrimination based on sexual orientation was a "sweeping and comprehensive" change in the legal status of gays and lesbians.⁽²²³⁾ The Court viewed Amendment 2's disabling effect on gays' and lesbians' legal status as "broad" and "far-reaching" because gays and lesbians could be discriminated against in a vast number of transactions, endeavors, and accommodations in Colorado.⁽²²⁴⁾ Similarly, DOMA has a profound discriminatory effect on the legal status of marriages between persons of the same sex.⁽²²⁵⁾ By stating that the federal government will not recognize marriages of same-sex couples,⁽²²⁶⁾ DOMA denies a vast number of federal benefits and entitlements to married same-sex couples.⁽²²⁷⁾ DOMA also allows the denial of an immense number of state entitlements to such couples⁽²²⁸⁾ by providing that states are not required to recognize marriages of same-sex couples performed out-of-state.⁽²²⁹⁾

A significant distinction between Romer and DOMA on this point, however, is that Amendment 2 repealed anti-discrimination laws to the extent that they prohibited discrimination on the basis of sexual orientation, and barred all branches of Colorado's government from protecting gays and lesbians from discrimination.⁽²³⁰⁾ In contrast, DOMA does not prohibit the States or Congress from deciding to recognize marriages of same-sex couples.⁽²³¹⁾ However, even if the States legalize marriages between persons of the same sex, such marriages still would not be recognized by the federal government.⁽²³²⁾ Further, this lack of federal recognition can only be changed through an Act of Congress or a decision by the United States Supreme Court.

a. The Rights and Benefits that Flow from Marriage

There are a great number of federal benefits that are accorded to marriages between persons of the opposite sex.⁽²³³⁾ The United States General Accounting Office Report on DOMA reveals that there "is a collection of 1049 federal laws classified to the United States Code in which marital status is a factor."⁽²³⁴⁾ These federal benefits include the following: favorable tax status;⁽²³⁵⁾ benefits relating to trade, commerce, and intellectual property;⁽²³⁶⁾ social security entitlements (including child support enforcement, Medicaid and Medicare);⁽²³⁷⁾ housing benefits;⁽²³⁸⁾ veteran's benefits;⁽²³⁹⁾ federal employment and military service benefits;⁽²⁴⁰⁾ rights accorded to the spouses of Native Americans;⁽²⁴¹⁾ immigration entitlements;⁽²⁴²⁾ employment benefits in the private sector (including sick leave to care for one's spouse);⁽²⁴³⁾ protections relating to crimes and family violence;⁽²⁴⁴⁾ loans, guarantees, and payments in agriculture;⁽²⁴⁵⁾ and benefits relating to federal natural resources.⁽²⁴⁶⁾

In addition to federal entitlements, many rights and benefits are accorded to marriages through state laws and policies, as well as the practices of businesses and organizations.⁽²⁴⁷⁾ These benefits include the following: inheritance rights;⁽²⁴⁸⁾ the right to file a wrongful death action;⁽²⁴⁹⁾ spousal support;⁽²⁵⁰⁾ employee benefits;⁽²⁵¹⁾ worker's compensation;⁽²⁵²⁾ discount family packages;⁽²⁵³⁾ visitation of a spouse in a hospital or prison;⁽²⁵⁴⁾ the right to make medical decisions on behalf of one's spouse;⁽²⁵⁵⁾ decisionmaking rights with regard to a deceased spouse's funeral, burial or cremation;⁽²⁵⁶⁾ guardianship entitlements;⁽²⁵⁷⁾ adoption rights;⁽²⁵⁸⁾ division of property upon divorce;⁽²⁵⁹⁾ spousal immunity;⁽²⁶⁰⁾ and housing rights.⁽²⁶¹⁾

b. Rights by Contract or through Domestic Partnerships

Although some of these rights can be acquired through contracts and domestic partnership laws or policies, these means do not make same-sex unions legally equivalent to marriages.⁽²⁶²⁾ Same-sex couples can inherit from each other by drafting wills, and they can make medical decisions on each other's behalf by executing powers of attorney.⁽²⁶³⁾ They can also contract for a division of property in the event that their relationships terminate.⁽²⁶⁴⁾ In some cases, however, a surviving partner will have to pay significant taxes when inheriting from his or her partner, while heterosexual spouses inherit tax-free.⁽²⁶⁵⁾ Additionally, although many courts have upheld these agreements, surviving partners frequently have had difficulty enforcing such contracts when challenged by their deceased partner's relatives.⁽²⁶⁶⁾ Furthermore, as Professor David L. Chambers points out:

gay men and lesbians who are in relationships need these protections for the same reason that heterosexual persons need them. Like most heterosexuals, most gay men and lesbians are reluctant to think about their mortality and procrastinate about remote contingencies. They fail to execute wills and powers of attorney, even though they are often aware of the unfortunate consequences of failing to act.⁽²⁶⁷⁾

Finally, these arrangements can not cover all of the benefits and rights that flow from heterosexual marriages, such as federal rights and benefits, and protections in the areas of child custody, health insurance, and pension plans.⁽²⁶⁸⁾

Another way that same-sex couples can acquire some of the benefits of marriage is through domestic partnership laws and policies.⁽²⁶⁹⁾ Domestic partnership has been defined as "a business or political recognition of two adults seeking to share benefits normally conferred upon married couples."⁽²⁷⁰⁾ More than 450 corporations,⁽²⁷¹⁾ and approximately 150 municipalities have extended domestic partnership benefits to unmarried couples.⁽²⁷²⁾ Professor Raymond C. O'Brien explains that the benefits provided by domestic partnership laws vary; they "could include health care, hospital visitation, housing, or other specific benefits able to be conferred by business or government."⁽²⁷³⁾

While domestic partnership laws and policies have benefitted the gay and lesbian community,⁽²⁷⁴⁾ only a limited number of businesses and municipalities have adopted them,⁽²⁷⁵⁾ and they do not provide comprehensive family protection.⁽²⁷⁶⁾ Domestic partnership policies are limited to work-related benefits, and are only accorded to the employees of businesses that have adopted such policies.⁽²⁷⁷⁾ Additionally, most domestic partnership laws have been enacted by municipalities, restricting certain benefits to city employees only.⁽²⁷⁸⁾ Furthermore, because these are municipal laws, they do not "affect the state [statutes] which most often govern family/relationship rights in our society."⁽²⁷⁹⁾

c.  The Consequences of Not Recognizing Marriages of Same-Sex Couples

Because many federal and state laws have been passed in support of marriage, the denial of federal and state marriage benefits to a same-sex couple can seriously impede the couple's ability to protect their interests and operate as a cohesive unit.⁽²⁸⁰⁾ For example, in Ross v. Denver Department of Health and Hospitals,⁽²⁸¹⁾ the Colorado Court of Appeals concluded that the Denver Department of Health's denial of family sick leave benefits to an employee to care for her domestic partner did not discriminate against the employee based on her sexual orientation, even though such benefits are accorded to heterosexual employees to care for their spouses.⁽²⁸²⁾ In Adams v. Howerton,⁽²⁸³⁾ the Ninth Circuit Court of Appeals affirmed the district court's holding that a homosexual ceremonial marriage did not qualify an alien as an American citizen's spouse for purposes of the Immigration and Nationality Act.⁽²⁸⁴⁾

This point is further illustrated through the story about Art Sullivan and Robert Johnson York.⁽²⁸⁵⁾ Sullivan and York were partners for thirteen years; they had exchanged rings and pledged their commitment to each other.⁽²⁸⁶⁾ While Sullivan was away on a business trip, York died in their home from a sudden cerebral hemorrhage.⁽²⁸⁷⁾ When Sullivan returned, the police would not let him in the home, and he was initially prohibited from viewing York's body at the morgue because he was not a relative.⁽²⁸⁸⁾ Sullivan was banned from York's funeral, and York's family claimed all of York's property.⁽²⁸⁹⁾ Although York had told Sullivan that he wanted to be cremated, York was buried in a family plot.⁽²⁹⁰⁾ If their union had been recognized by the state, Sullivan would have been entitled to arrange York's funeral and would have had the right to inherit York's property.⁽²⁹¹⁾

2.  DOMA Is An Unprecedented Use of Legislative Power

Another similarity between Romer and DOMA is that both Amendment 2 and DOMA are unprecedented laws.⁽²⁹²⁾ In Romer, the Court highlighted this characteristic by stating that Amendment 2's "disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence."⁽²⁹³⁾ The Court explained the significance of this characteristic by stressing that, "[t]he absence of precedent for Amendment 2 is itself instructive; `discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.'"⁽²⁹⁴⁾ Similarly, DOMA is unprecedented in two ways: (1) for the first time in the history of the United States, Congress is using the Full Faith and Credit Clause in order to limit full faith and credit, rather than for the purpose of unification;⁽²⁹⁵⁾ and (2) before DOMA, Congress had relied on a state's definition of marriage when determining who would be entitled to federal benefits.⁽²⁹⁶⁾

The Full Faith and Credit Clause of the United States Constitution states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."⁽²⁹⁷⁾ Congress used its power under the second clause of this section to enact Section Two of DOMA, which declares that states can give no effect to marriages of same-sex couples performed in other states.⁽²⁹⁸⁾ This use of the Full Faith and Credit Clause is unprecedented in our nation's history.⁽²⁹⁹⁾

An historical analysis of the Full Faith and Credit Clause shows that its purpose is to foster unity among the fifty states.⁽³⁰⁰⁾ In Williams v. North Carolina,⁽³⁰¹⁾ the Supreme Court stated that "the `very purpose' of [the Full Faith and Credit Clause] was . . . 'to make [the states] integral parts of a single nation.'"⁽³⁰²⁾ Laws passed under the Full Faith and Credit Clause have fostered the Clause's purpose of unification--none were passed with the purpose of limiting full faith and credit.⁽³⁰³⁾ Prior to DOMA, Congress had used this power only four times.⁽³⁰⁴⁾

The first piece of legislation, which was passed in 1790 by the First Congress,⁽³⁰⁵⁾ provides rules for authenticating Acts, records and judicial proceedings, and codifies the Full Faith and Credit Clause by repeating its mandate.⁽³⁰⁶⁾ The second piece of legislation, which was passed in 1804 by the Eighth Congress,⁽³⁰⁷⁾ provides rules for authenticating nonjudicial records and requires that full faith and credit shall be given to such records.⁽³⁰⁸⁾

Congress did not use its Full Faith and Credit power again until 1980, when the Parental Kidnapping Prevention Act of 1980 (PKPA) was enacted.⁽³⁰⁹⁾ The PKPA mandates states to enforce child custody determinations made in different states.⁽³¹⁰⁾ In 1994, Congress passed the Full Faith and Credit for Child Support Orders Act,⁽³¹¹⁾ which provided that states must enforce child support orders made in other states.⁽³¹²⁾ Members of Congress have argued that these Acts set a precedent for DOMA because they provide exceptions to full faith and credit in certain circumstances.⁽³¹³⁾

This argument does not seem plausible, however, because the purpose behind both the PKPA and the Full Faith and Credit for Child Support Orders Act was to facilitate the enforcement of states' custody determinations and child support orders in sister states.⁽³¹⁴⁾ Congress passed the 1980 and 1994 Acts under its Full Faith and Credit authority because sister states were refusing to give full faith and credit to orders that were not considered final judgments.⁽³¹⁵⁾ In response, "Congress directed sister States to give full faith and credit to child custody [and] child support . . . orders from other States."⁽³¹⁶⁾ In contrast, DOMA "permits sister States to give no effect to the laws of other States."⁽³¹⁷⁾

The second way in which DOMA is unprecedented is evident in the second provision of the Act, which defines "marriage" and "spouse" for federal purposes.⁽³¹⁸⁾ This provision is unprecedented because marriage has always been regulated by the states,⁽³¹⁹⁾ and the federal government has consistently relied upon the states' definitions of marriage when determining eligibility for federal benefits.⁽³²⁰⁾ For example, when the federal government determines whether a veteran's spouse is eligible for veterans' benefits, the marriage must be proven "according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued."⁽³²¹⁾

B.  DOMA Does Not Rationally Further A Legitimate Government Interest: The Only Apparent Motivation Behind DOMA Is Anti-Gay Animus

In addition to stressing that Amendment 2 was unprecedented, the Court, in Romer, explained that Amendment 2 was unconstitutional because it failed the most conventional constitutional inquiry.⁽³²²⁾ Amendment 2 failed this inquiry because "its sheer breadth [was] so discontinuous with reasons offered for it that the amendment seem[ed] inexplicable by anything but animus toward the class that it affect[ed]; it lack[ed] a rational relationship to legitimate state interests."⁽³²³⁾ The Court stated that laws which are motivated by animosity toward "`a politically unpopular group cannot constitute a legitimate government interest.'"⁽³²⁴⁾

In passing DOMA, Congress claimed that the Act advances the following four governmental interests: "(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources."⁽³²⁵⁾ An examination of these interests under the rational basis test, and a review of DOMA's legislative history reveals that DOMA does not rationally further legitimate government interests.⁽³²⁶⁾ Instead, like Amendment 2 in Romer, the motivation behind DOMA was anti-gay animus.⁽³²⁷⁾

1.  The Governmental Interest in Defending and Nurturing the Institution of Traditional, Heterosexual Marriage

The House Report on DOMA asserts that it is "appropriate" and "necessary" for Congress to protect the institution of marriage, which would be significantly altered by the legalization of marriages between persons of the same sex.⁽³²⁸⁾ The Report claims that it was necessary for Congress to protect marriage as a heterosexual institution, offering the justification that marriages of opposite-sex couples are given a preferred status in the United States because the ultimate purpose of marriage is to beget children.⁽³²⁹⁾

a.  Procreation Is Not the Primary Purpose of Marriage

This argument is irrational because procreation is not the ultimate purpose of marriage.⁽³³⁰⁾ States do not require heterosexual couples to prove their ability and willingness to procreate before issuing marriage licenses,⁽³³¹⁾ and the assumption that procreation is an essential element of marriage has been challenged by many married couples who have not chosen parenthood.⁽³³²⁾ In addition, this assumption is inapplicable to the many marriages that have been "contracted by people who have young children from their first marriage to raise, by people whose children have grown up and are independent, and by people who have passed their childbearing years."⁽³³³⁾ In fact, "the most significant function of marriage today seems to be that it furnishes emotional satisfactions to be found in no other relationships."⁽³³⁴⁾ While the traditional elements of marriage consisted of economic production and child rearing, presently the main functions of marriage "seem to be furnishing opportunities for affection, companionship and sexual satisfaction."⁽³³⁵⁾

Furthermore, the argument that procreation is the primary purpose of marriage contradicts the holdings in several United States Supreme Court decisions that established the right to contraception and abortion. In Griswold v. Connecticut⁽³³⁶⁾ the Court held that a Connecticut statute which prohibited the use of contraceptives was unconstitutional because it infringed upon the right of privacy in a marital relationship.⁽³³⁷⁾ In Eisenstadt v. Baird⁽³³⁸⁾ the Court extended the right to contraception to unmarried persons when it held that a Massachusetts statute which prohibited the distribution of contraceptives to unmarried persons was unconstitutional under the Equal Protection Clause because it treated married and unmarried persons differently.⁽³³⁹⁾ The Court stated, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."⁽³⁴⁰⁾ Finally, in Roe v. Wade⁽³⁴¹⁾ the Court held that the right to privacy encompasses a woman's decision to terminate her pregnancy.⁽³⁴²⁾

Although these cases are not directly on point, they contradict the assertion that procreation is the primary purpose of marriage in two ways. First, they suggest that states may not compel married persons to procreate, and, second, they imply that procreation is not exclusively connected to marriage.⁽³⁴³⁾ The implication that procreation is not exclusively linked to marriage is further supported by the fact that a growing number of families in the United States are headed by single parents.⁽³⁴⁴⁾

Moreover, courts have argued that procreation is an essential aspect of marriage only when gays and lesbians have petitioned for marriage.⁽³⁴⁵⁾ Therefore, the selective application of this argument to same-sex couples is not a legitimate interest, but a pretext for discrimination against same-sex couples in violation of the equal protection component of the Fifth Amendment's Due Process Clause.⁽³⁴⁶⁾

b.  Gays and Lesbians Are Procreating

Assuming, arguendo, that procreation is the primary purpose of marriage, the fact that many gays and lesbians are procreating defeats the argument that marriage should be maintained as a heterosexual institution. Although statistical information on gays and lesbians is difficult to gather,⁽³⁴⁷⁾ it has been estimated that there are between one and five million lesbian mothers in the United States and between one and three million gay fathers.⁽³⁴⁸⁾ Additionally, it has been estimated that six to fourteen million children in the United States have a gay or lesbian parent.⁽³⁴⁹⁾ While many gays and lesbians became parents while in heterosexual relationships, a substantial number of gays and lesbians have had children after coming out.⁽³⁵⁰⁾ Gays and lesbians are planning families through artificial insemination, adoption, and surrogate motherhood.⁽³⁵¹⁾ It has been estimated that 10,000 children are being raised by lesbians who became pregnant by means of artificial insemination.⁽³⁵²⁾ Openly gay adults can adopt children in the District of Columbia, Ohio and California,⁽³⁵³⁾ and second-parent adoptions by the biological or legal parent's partner⁽³⁵⁴⁾ have been permitted in seventeen states.⁽³⁵⁵⁾ Additionally, many gay men have become parents through surrogate motherhood.⁽³⁵⁶⁾ Surrogate parenting, through agencies or private arrangements, is permitted in many states.⁽³⁵⁷⁾

c.  Congress' Assertion That Heterosexual Parents Are Superior To Gay and Lesbian Parents Is Erroneous

Continuing its contention that the ultimate purpose of marriage is procreation, the House Report on DOMA further asserts that society has an interest in maintaining marriage as a heterosexual union because heterosexual marriages encourage "responsible procreation and child-rearing."⁽³⁵⁸⁾ As such, the government's "interest in marriage" stems from its "interest in children."⁽³⁵⁹⁾ The House Report states that when a child is born into a heterosexual marriage, he or she "`enters the world in a framework of lawfulness, with parents who are committed to [his or her] care and nurturance for the same reason that they are committed to each other.'"⁽³⁶⁰⁾ Therefore, out of a concern for children, the Report claims that DOMA was necessary to protect the institution of heterosexual marriage.⁽³⁶¹⁾

i.  Studies on Gay and Lesbian Parents and Their Children

Contrary to Congress' assertion that heterosexual parents are superior to gay and lesbian parents, studies have shown that gays and lesbians are just as effective at parenting as heterosexuals.⁽³⁶²⁾ After reviewing many studies, the American Psychological Association has announced that, "there is no evidence to suggest that lesbians and gay men are unfit to be parents or that psychological development among children of gay men or lesbians is compromised in any respect relative to that among offspring of heterosexual parents."⁽³⁶³⁾

Doctors G. Dorsey Green and Frederick W. Bozett reviewed studies comparing gay and lesbian parents to heterosexual parents and found that lesbian and gay parents "are as sufficient in [parental] roles as heterosexuals, and that the home life they provide is at least of equal quality."⁽³⁶⁴⁾ They concluded that "homosexuality is compatible with effective parenting."⁽³⁶⁵⁾ Doctors Green and Bozett also reviewed several studies that compared the children of heterosexual parents to the children of gay and lesbian parents.⁽³⁶⁶⁾ They concluded that "the children in those studies who have lesbian or gay parents are comparable to the children of heterosexual parents. Their parents' sexual orientation is not the determining factor in their health and well-being."⁽³⁶⁷⁾

Dr. Charlotte J. Patterson reviewed several studies that compared children of gay and lesbian parents to children of heterosexual parents in the areas of gender identity, gender-role behavior, sexual orientation and other aspects of personal development.⁽³⁶⁸⁾ Dr. Patterson concluded that, in every study, the development of children of gay and lesbian parents was "within normal bounds" in the areas of gender identity, gender-role behavior and sexual orientation.⁽³⁶⁹⁾ Furthermore, Dr. Patterson determined that "no evidence has been found for significant disturbances of any kind in the development of sexual identity among" the children of gay and lesbian parents.⁽³⁷⁰⁾ With regard to other aspects of personal development, Dr. Patterson concluded that "studies [on] . . . self-concept, locus of control, moral judgment, and intelligence revealed no significant differences between children of lesbian or gay parents and children of heterosexual parents."⁽³⁷¹⁾

ii.  Courts Have Found Gays and Lesbians To Be Suitable Parents

Many court decisions involving gay and lesbian parents have recognized that gays and lesbians are suitable parents.⁽³⁷²⁾ In Baehr v. Miike,⁽³⁷³⁾ the Circuit Court of Hawaii found that the legalization of marriages between persons of the same sex would not have "adverse effects upon the optimal development of children."⁽³⁷⁴⁾ The court stated that "it is the quality of parenting . . . which is the most significant factor that affects the development of a child," and that "gay and lesbian parents and same-sex couples can provide children with a nurturing relationship and a nurturing environment which is conducive to the development of happy, healthy, and well-adjusted children."⁽³⁷⁵⁾ Contrary to the argument that marriages of same-sex couples would be harmful to children, the court determined that allowing such marriages will actually benefit children.⁽³⁷⁶⁾ The court found that if a child's gay or lesbian parents are allowed to marry, that child "may obtain certain protections and benefits that come with, or become available, as a result of marriage."⁽³⁷⁷⁾

The Supreme Judicial Court of Massachusetts (SJC) came to similar conclusions in Adoption of Tammy.⁽³⁷⁸⁾ In Tammy, the SJC affirmed the Probate and Family Court's decision to allow an adoption by two lesbian partners, Susan and Helen, of Susan's biological child, Tammy.⁽³⁷⁹⁾ The facts revealed that Helen and Susan had been in a committed relationship for over ten years and owned a home together.⁽³⁸⁰⁾ For several years prior to Tammy's birth, Helen and Susan had planned to have and raise a child together.⁽³⁸¹⁾ Susan became pregnant through artificial insemination using semen from Helen's cousin, Francis.⁽³⁸²⁾ Tammy was raised, financially supported, and parented by both Susan and Helen, and Tammy regarded both of them as her parents.⁽³⁸³⁾ Susan and Helen filed a joint petition to adopt Tammy "believ[ing] that the best interests of Tammy require[d] legal recognition of her identical emotional relationship to both women."⁽³⁸⁴⁾

The SJC decided that "[t]here is nothing on the face of the [adoption] statute which precludes the joint adoption of a child by two unmarried cohabitants such as petitioners[,]"⁽³⁸⁵⁾ and that allowing Helen to adopt Tammy would not terminate Susan's parental rights under the adoption statute because "[t]he Legislature obviously did not intend that a natural parent's legal relationship to its child be terminated when the natural parent is a party to the adoption petition."⁽³⁸⁶⁾ The SJC ruled that "the conclusion that the adoption is in the best interests of Tammy [was] . . . well warranted,"⁽³⁸⁷⁾ because the evidence showed that Tammy is an "extremely well-adjusted, bright, creative, cheerful child[.]"⁽³⁸⁸⁾ The SJC also determined that a legal connection between Helen and Tammy would benefit Tammy in many ways.⁽³⁸⁹⁾ The SJC concluded that Susan, Helen, and Tammy "form a healthy, happy, and stable family unit."⁽³⁹⁰⁾

2.  The Government's Interest in Defending Traditional Notions of Morality

The House Report on DOMA asserts that, for many Americans, marriage corresponds with religious beliefs and notions of morality.⁽³⁹¹⁾ Although the legal contract of marriage is separate from religion, the Report continues, laws that exclusively recognize heterosexual marriages reflect a prevalent moral belief about sexuality.⁽³⁹²⁾ According to the Report, this collective position is closely intertwined with Judeo-Christian traditions and beliefs, which promote heterosexuality and condemn homosexuality.⁽³⁹³⁾ As such, the Report declares that legalizing marriages of same-sex couples belittles marriage, because most Americans believe homosexuality is morally wrong.⁽³⁹⁴⁾ According to the Report, DOMA was necessary in order to further "the government's . . . interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws."⁽³⁹⁵⁾

a.  Failing to Recognize Civil Marriages of Same-Sex Couples Based On Religious Traditions Is Illegitimate Under Equal Protection Analysis

As Congress correctly concedes,⁽³⁹⁶⁾ a civil marriage is separate from a marriage recognized by a religious institution.⁽³⁹⁷⁾ Ironically, however, Congress asserts that because Judeo-Christian religious traditions are in opposition with homosexuality, civil marriages of same-sex couples should not be recognized.⁽³⁹⁸⁾ This argument is flawed because religious institutions that are opposed to homosexuality do not have to allow a marriage between persons of the same sex.⁽³⁹⁹⁾ Furthermore, the United States Supreme Court, in Loving v. Virginia,⁽⁴⁰⁰⁾ refused to uphold antimiscegenation laws based on religious beliefs, as the trial court in Loving had.⁽⁴⁰¹⁾ Additionally, several United States Supreme Court cases have held that public laws cannot single out a group of people and deny them equal protection under the law based on the private negative beliefs of the majority.⁽⁴⁰²⁾

i.  Loving v. Virginia

In Loving v. Virginia,⁽⁴⁰³⁾ the United States Supreme Court rejected the view that antimiscegenation laws could be validated based on religious objections to non-traditional marriages.⁽⁴⁰⁴⁾ In Loving, a black woman and a white man, both residents of Virginia, were married in the District of Columbia, and then returned to their home in Virginia.⁽⁴⁰⁵⁾ They were charged with violating Virginia's criminal statute, which prohibited interracial marriages, and were ordered by the trial judge to leave the state for a period of twenty-five years.⁽⁴⁰⁶⁾ The trial judge stated in the opinion:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend the races to mix."⁽⁴⁰⁷⁾

This reasoning reflects a purpose similar to that of DOMA: to advance traditional notions of morality.⁽⁴⁰⁸⁾ During the Congressional debates on DOMA, Congressman Buyer of Indiana stated, "God laid down that one man and one woman is a legal union."⁽⁴⁰⁹⁾

In Loving, the United States Supreme Court did not follow the trial court's reasoning, but instead ruled that antimiscegenation laws were racial classifications in violation of the Equal Protection Clause.⁽⁴¹⁰⁾ The Court concluded that "[t]he fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications . . . [were] measures designed to maintain White Supremacy."⁽⁴¹¹⁾ Similarly, DOMA singles out marriages of same-sex couples and denies equality under marriage laws.⁽⁴¹²⁾ As Professor William Eskridge explains, "[b]oth tenets rest upon hate and fear, seeking to isolate a group of . . . people from full citizenship."⁽⁴¹³⁾ The Loving decision stands for the proposition that the advancement of traditional religious beliefs is not a valid reason for denying equal protection under marriage laws.⁽⁴¹⁴⁾ Therefore, under Loving, DOMA's government interest in preserving traditional notions of morality is illegitimate.⁽⁴¹⁵⁾ A major distinction between DOMA and Loving, however, is that sexual orientation is not currently a suspect classification, as race is. But, under Romer v. Evans,⁽⁴¹⁶⁾ suspect and quasi-suspect classifications are not necessary to strike down laws that are enacted based on the mere disapproval of homosexuality.⁽⁴¹⁷⁾

ii.  Moreno, Cleburne & Romer

Held That the Enactment of a Law Based on the Mere Disapproval of a Group Is Unconstitutional Under Rational Basis Review

In support of DOMA, the House Report states that traditional notions of morality assert that homosexuality is morally wrong, and DOMA is furthering this belief.⁽⁴¹⁸⁾ In other words, the motivation behind DOMA is the disapproval of homosexuality, which is rooted in traditional religious beliefs.⁽⁴¹⁹⁾ This type of interest is illegitimate under Moreno, Cleburne and Romer.⁽⁴²⁰⁾

In Department of Agriculture v. Moreno,⁽⁴²¹⁾ the Court held that a provision of the Food Stamp Act violated the equal protection component of the Fifth Amendment.⁽⁴²²⁾ The provision excluded from the food stamp program households containing unrelated persons.⁽⁴²³⁾ The legislative history revealed that the provision was developed in order "to prevent so-called `hippies' and `hippie communes' from participating in the food stamp program."⁽⁴²⁴⁾ This interest, according to the Court, was constitutionally invalid because the "`equal protection of the laws'" at the very least means "that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate government interest."⁽⁴²⁵⁾ The Court decided that, without reference to an independent public interest, the desire to prevent hippies from participating in the food stamp program could not justify the provision.⁽⁴²⁶⁾ The Court then concluded that the interest advanced by the government, to prevent fraud, did not withstand rational basis review because the effect of the provision was too far removed from this interest.⁽⁴²⁷⁾

In City of Cleburne v. Cleburne Living Center,⁽⁴²⁸⁾ the Court held that the City's requirement that homes for the mentally retarded must have special use permits violated the Equal Protection Clause under rational basis review.⁽⁴²⁹⁾ In Cleburne, the respondent intended to lease her home, which was located in the City of Cleburne, to the Cleburne Living Center (CLC) to operate a group home for the mentally retarded.⁽⁴³⁰⁾ The City required a special use permit to have a home for the mentally retarded, and then denied the CLC's application for the permit.⁽⁴³¹⁾

One of the many interests advanced by the City was the City's concern with "the negative attitude of the majority of property owners located within 200 feet of [the home], [and] with [the] fears of the elderly residents of the neighborhood."⁽⁴³²⁾ The Court concluded that this interest was illegitimate because "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently."⁽⁴³³⁾

The Romer Court followed the Moreno decision by concluding that laws which are passed for the purpose of disadvantaging gays and lesbians are illegitimate.⁽⁴³⁴⁾ Additionally, Romer is similar to the reasoning in Cleburne because, under Romer, laws that discriminate against gays and lesbians merely because of society's negative beliefs about homosexuality violate the Equal Protection Clause.⁽⁴³⁵⁾ In Romer, the State argued that Amendment 2 advanced the government interest of respecting "the liberties of landlords or employers who have personal or religious objections to homosexuality."⁽⁴³⁶⁾ The Court rejected this argument, and found that "Amendment 2 [was not] directed to any identifiable legitimate purpose or discrete objective."⁽⁴³⁷⁾

All three of these cases make it clear that the government cannot discriminate against a group merely because it disapproves of the group, whether such disapproval is based on traditional notions of family (Moreno), private fears of the mentally retarded (Cleburne), or negative beliefs about homosexuality (Romer).⁽⁴³⁸⁾ The law must advance an independent public interest in order to pass rational basis review.⁽⁴³⁹⁾ Therefore, the denial of equal protection under the law based on mere negative beliefs about homosexuality, i.e. that homosexuality is immoral, is unconstitutional under Moreno, Cleburne, and Romer.⁽⁴⁴⁰⁾

iii.  Bowers v. Hardwick

In passing DOMA, Congress relied on Bowers v. Hardwick⁽⁴⁴¹⁾ to support the government interest of preserving traditional notions of morality.⁽⁴⁴²⁾ In Bowers, the Supreme Court held that the Constitution does not confer upon homosexuals a fundamental right to engage in consensual sodomy.⁽⁴⁴³⁾ The respondent in Bowers, Hardwick, was charged with violating Georgia's criminal sodomy law after engaging in oral sex with another man in the bedroom of Hardwick's home.⁽⁴⁴⁴⁾ Hardwick challenged the constitutionality of the statute under the Due Process Clause by asserting that the law violated his fundamental right to privacy.⁽⁴⁴⁵⁾

After concluding that there is no fundamental right to engage in homosexual sodomy, the Court considered whether there was a rational basis for the statute.⁽⁴⁴⁶⁾ The Court reasoned that "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable" was a rational basis for Georgia's sodomy statute.⁽⁴⁴⁷⁾

The Romer decision seems to contradict Bowers because, as Professor Cass Sunstein explains, "[Bowers] says that disapproval of homosexual sodomy is a sufficient reason for criminal prohibition, whereas Romer denies that disapproval of homosexuality is a sufficient reason to bar use of anti-discrimination law."⁽⁴⁴⁸⁾ As a result, there is uncertainty as to the status of Bowers, because the Romer Court never mentioned Bowers in its decision.⁽⁴⁴⁹⁾ Justice Scalia criticized the Romer Court on this point in his dissenting opinion.⁽⁴⁵⁰⁾ Justice Scalia stated, "[i]f it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct."⁽⁴⁵¹⁾

Although Romer and Bowers seem contradictory on the issue of whether the government can discriminate against gays and lesbians to promote traditional notions of morality, the Bowers decision should not be applied to an equal protection challenge against DOMA because Bowers was a due process case.⁽⁴⁵²⁾ As explained by Judge Norris in Watkins v. United States Army,⁽⁴⁵³⁾ the Bowers Court did not decide whether discrimination against gays and lesbians violates equal protection.⁽⁴⁵⁴⁾ The Bowers Court only decided "that homosexual sodomy is not a practice so '"deeply rooted in this Nation's history and tradition"' that it falls within the zone of personal privacy protected by the due process clause."⁽⁴⁵⁵⁾ According to Professor Sunstein, "[t]he Equal Protection and Due Process Clauses have very different offices, and [Bowers] is not in tension with Romer so long as those different offices are kept in mind."⁽⁴⁵⁶⁾ The Equal Protection Clause changes and corrects traditions that discriminate against disadvantaged minorities while the Due Process Clause protects traditional rights.⁽⁴⁵⁷⁾ Under this view, Romer should prevail over Bowers in an equal protection claim against DOMA.⁽⁴⁵⁸⁾ As the Seventh Circuit Court of Appeals has stated, "[o]f course Bowers will soon be eclipsed in the area of equal protection by the Supreme Court's holding in Romer v. Evans."⁽⁴⁵⁹⁾

Additionally, in Watkins, Judge Norris distinguished Bowers by explaining that Bowers involved discrimination based on homosexual conduct while Watkins involved discrimination based on homosexual orientation.⁽⁴⁶⁰⁾ When this conduct/status distinction is applied to DOMA, it has been argued that DOMA is constitutional under Romer.⁽⁴⁶¹⁾ According to Professor Lynn D. Wardle, Romer is distinguished from DOMA because, in Romer, the discrimination was based on status (sexual orientation) while DOMA discriminates on the basis of conduct (marriage).⁽⁴⁶²⁾

Contrary to this assertion, in Romer, Amendment 2 was not limited to discrimination on the basis of status; the amendment discriminated on the basis of conduct as well.⁽⁴⁶³⁾ The Romer Court pointed out that Amendment 2 repealed anti-discrimination ordinances "to the extent that they prohibit[ed] discrimination on the basis of 'homosexual, lesbian or bisexual orientation, conduct, practices or relationships.'"⁽⁴⁶⁴⁾ And, as Professor Sunstein explains, "[Romer] did not principally stress the status offense issue; if it had, it might as well have invalidated Amendment 2 only insofar as it targeted the mere status of homosexual orientation, and preserved it insofar as it targeted homosexual conduct."⁽⁴⁶⁵⁾ Therefore, it seems that the Romer decision applies to discriminations on the basis of status and conduct.⁽⁴⁶⁶⁾ As such, even if DOMA is viewed as discrimination based on homosexual conduct, Romer should still overshadow Bowers when analyzing the constitutionality of DOMA under the equal protection component of the Fifth Amendment's Due Process Clause.⁽⁴⁶⁷⁾

3.  The Government Interest of Protecting State Sovereignty and Democratic Self-Governance

In passing DOMA, the House Report asserts that the Committee on the Judiciary was very disturbed by the fact that the issue of marriage between persons of the same sex has been largely court-driven.⁽⁴⁶⁸⁾ As such, the Report states that "[t]he Defense of Marriage Act is motivated in part by a desire to protect the ability of elected officials to decide matters related to homosexuality."⁽⁴⁶⁹⁾

Contrary to this assertion, the legislative history reveals that DOMA was not passed to further democratic self-governance with regard to homosexuality.⁽⁴⁷⁰⁾ Rather, the purpose of the Act was to disadvantage married same-sex couples, whether State elected officials decided to recognize such marriages or not.⁽⁴⁷¹⁾

During the congressional debates over DOMA, an amendment was offered by Congressman Barney Frank of Massachusetts that addressed Congress' concern about state sovereignty and democratic self-governance.⁽⁴⁷²⁾ The amendment provided that if a state democratically decided to recognize marriages of same-sex couples, through legislation, referendum, or by amending the state constitution, then the state's definition would apply for federal purposes rather than the federal definition articulated in DOMA.⁽⁴⁷³⁾

Congress rejected the amendment.⁽⁴⁷⁴⁾ As a result, even if a state democratically decides to recognize marriages of same-sex couples, the federal government will not.⁽⁴⁷⁵⁾ The failure to adopt this amendment contradicts the argument that DOMA furthers the interest of state sovereignty and democratic self-governance.⁽⁴⁷⁶⁾ In reality, DOMA undermines the authority of the states by denying states "full discretion over their own marriage laws."⁽⁴⁷⁷⁾

Before DOMA, the federal government relied on a state's definition of marriage when determining eligibility for federal benefits.⁽⁴⁷⁸⁾ Under DOMA, the federal government will not recognize a state's definition of marriage that includes same-sex couples, regardless of whether that definition was adopted democratically or not.⁽⁴⁷⁹⁾ Therefore, it seems that Congress was more concerned with disadvantaging marriages of same-sex couples than with "protecting state sovereignty and democratic self-governance."⁽⁴⁸⁰⁾

Furthermore, the House Report asserts that it is undemocratic to have this issue decided by the courts; however, under Marbury v. Madison,⁽⁴⁸¹⁾ the courts are responsible for interpreting the laws and striking down those that are repugnant to constitutional guarantees.⁽⁴⁸²⁾ As such, the Hawaii Supreme Court, in Baehr v. Lewin,⁽⁴⁸³⁾ was doing precisely what Marbury requires when it struck down Hawaii's marriage statute as unconstitutional under the equal protection clause of the Hawaii Constitution.⁽⁴⁸⁴⁾ Members of Congress would still argue, however, that DOMA is necessary under the rationale that states may be compelled to recognize marriages of same-sex couples under the Full Faith and Credit Clause.⁽⁴⁸⁵⁾ But this argument is irrational.⁽⁴⁸⁶⁾ If states can refuse to recognize marriages of same-sex couples under anti-marriage laws, i.e., democratically, then DOMA is unnecessary.⁽⁴⁸⁷⁾ And, if states are required to recognize marriages of same-sex couples under the Full Faith and Credit Clause, then Congress cannot override the Constitution through DOMA.⁽⁴⁸⁸⁾ Therefore, DOMA does not rationally further the government interest of protecting state sovereignty and democratic self-governance because the result is either pointless or unconstitutional.⁽⁴⁸⁹⁾

4.  The Government Interest of Preserving Scarce Government Resources

The House Report purports that DOMA was necessary because the legalization of marriage between persons of the same sex would entitle such couples to many federal benefits, causing an increase in federal expenditures.⁽⁴⁹⁰⁾ As such, the Report asserts that DOMA advances the government interest of preserving scarce government resources by denying federal recognition of marriages between persons of the same sex.⁽⁴⁹¹⁾

a.  There Is No Evidence To Support the Assertion That Recognizing Marriages of Same-Sex Couples Would Increase Federal Expenditures

While the federal recognition of marriages between persons of the same sex would entitle such couples to many federal benefits, Congress did not offer any economic studies to support the argument that this recognition would increase federal expenditures.⁽⁴⁹²⁾ Congress' argument is one dimensional in light of the many factors considered when predicting the economic impact of marriages between persons of the same sex on government expenditures.⁽⁴⁹³⁾

For example, economists M.V. Lee Badgett, Ph.D. and Josh A. Goldfoot propose that recognizing marriages of same-sex couples may significantly increase federal revenues.⁽⁴⁹⁴⁾ Badget and Goldfoot explain that married couples with similar earnings have to pay a "marriage penalty," which averaged $1244 per couple in 1994.⁽⁴⁹⁵⁾ Married couples with significantly different earnings receive a tax benefit, which averaged $1399 per couple in 1994.⁽⁴⁹⁶⁾ These "tax benefit" couples are usually more traditional, with one spouse maintaining the home while the other earns an income in the workforce.⁽⁴⁹⁷⁾ Studies show that when same-sex couples marry, they are not likely to adopt this traditional arrangement, "expressing a strong belief that both partners should work outside the home."⁽⁴⁹⁸⁾ As such, same-sex couples will most likely pay the marriage penalty.⁽⁴⁹⁹⁾

Although this tax increase could deter couples from marrying, studies indicate that most same-sex couples will decide to marry, despite the tax penalty.⁽⁵⁰⁰⁾ As a result, the federal government's tax revenues could dramatically increase.⁽⁵⁰¹⁾ For example, Badgett and Goldfoot point out that "California's failure to recognize the marriages of 10,000 two-earner gay couples . . . could cost the federal government over $12 million."⁽⁵⁰²⁾

Therefore, DOMA is not rationally related to the government interest of preserving scarce government resources because Congress has not shown that federal recognition of marriages between persons of the same sex would increase federal expenditures.⁽⁵⁰³⁾ In fact, the federal recognition of marriages between persons of the same sex may increase federal revenues.⁽⁵⁰⁴⁾

b.  The Proponents' Concern for American Taxpayers: Who's Really Being Treated Unfairly?

Members of Congress stated that federal tax dollars should not be spent on marriages of same-sex couples because most Americans are opposed to such marriages.⁽⁵⁰⁵⁾ Congressman Weldon of Florida argued, "I think it would be wrong to take money out of the pockets of working families across America and use those tax dollars to give Federal acceptance and financial support to same-sex marriages."⁽⁵⁰⁶⁾

When Congress advanced this government interest, they neglected to recognize that their gay and lesbian constituents pay federal taxes as well.⁽⁵⁰⁷⁾ While studies on the income levels of gays and lesbians have varied,⁽⁵⁰⁸⁾ this variation does not change the fact that gays and lesbians pay taxes. As such, the argument that American taxpayers should not have to pay for federal recognition of marriages between persons of the same sex is unjust and mean-spirited, because same-sex couples are American taxpayers.⁽⁵⁰⁹⁾ In fact, the denial of federal benefits to marriages of same-sex couples means that gays and lesbians are paying for federal benefits that they do not receive.⁽⁵¹⁰⁾ Their tax dollars are used to pay for federal benefits that are exclusively accorded to opposite-sex couples.⁽⁵¹¹⁾

Moreover, the denial of federal benefits to married same-sex couples because most Americans disapprove of homosexuality is illegitimate under Romer.⁽⁵¹²⁾ Romer stands for the proposition that the government cannot single out one group and deny them equal protection under the law in order to accommodate the majority's animus toward that group.⁽⁵¹³⁾

5.  The Legislative History Reveals That The Motivation Behind DOMA Was Anti-Gay Animus

The object of DOMA was to target marriages of same-sex couples based on irrational beliefs about homosexuality, negative attitudes toward gays and lesbians held by the majority, and subjective discomfort with homosexuality.⁽⁵¹⁴⁾ In passing DOMA, members of Congress acted on irrational beliefs, such as, the presumption that marriages of same-sex couples will lead to polygamous and incestuous marriages; that gays and lesbians are inferior parents; that gays and lesbians do not have strong relationships; and, that gays and lesbians are hedonistic and narcissistic.⁽⁵¹⁵⁾ The House Report states that, "`it is hard to detach marriage from . . . the inescapable fact that only two people, not three, only a man and a woman, can beget a child.'"⁽⁵¹⁶⁾ Congressman Largent of Oklahoma stated that once marriage between persons of the same sex is allowed "how can we stop there and say it should not also include two men and one woman, or three men, four men, or an adult and a child?"⁽⁵¹⁷⁾

With regard to gay and lesbian parenting, Senator Byrd of West Virginia stated, "[i]f same-sex marriage is accepted . . . America will have said that children do not need a mother and a father, two mothers or two fathers will be just as good. This would be a catastrophe."⁽⁵¹⁸⁾ With regard to same-sex relationships, Senator Byrd asserted, "[o]ut of such relationships emotional bonding oftentimes does not take place. . . ."⁽⁵¹⁹⁾ Senator Faircloth of North Carolina stated, "[s]ame-sex unions do not make strong families."⁽⁵²⁰⁾ In support of DOMA, Congressman Barr of Georgia stated, "The very foundations of our society are in danger of being burned. The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundations of our society: the family unit."⁽⁵²¹⁾

Additionally, as stated earlier, DOMA was passed in order to accomodate the private beliefs of Americans who disapprove of homosexuality.⁽⁵²²⁾ The House Report supported DOMA by stating, "[c]ivil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment [includes the] moral disapproval of homosexuality."⁽⁵²³⁾ Congressman Delay of Texas supported DOMA by stating, "[p]olls in Hawaii and across this country show that the majority of the people of this country do not support legalizing same-sex marriage."⁽⁵²⁴⁾

One Congressman admitted that his support for DOMA was based on his personal discomfort with homosexuality.⁽⁵²⁵⁾ After Congressman Bono of California voted against Congressman Frank's amendment, he apologized to Congressman Frank.⁽⁵²⁶⁾ Congressman Bono stated, "`I simply can't handle it yet Barney . . . I wish I was ready but I can't tell my son it's OK.'"<sup>(527)</sup> Congressman Frank said that gays and lesbians are seeking equal treatment, not Congresman Bono's approval.<sup>(528)</sup> Congressman Bono answered, "`You're absolutely right . . . I can't go as far as you deserve and I'm sorry.'"⁽⁵²⁹⁾

The United States Supreme Court has held that the government cannot pass laws that discriminate against a particular group based on "the negative attitude of the majority" "private biases," and "animus" toward the group.⁽⁵³⁰⁾ As the Court stated in Palmore v. Sidoti,⁽⁵³¹⁾ "[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."⁽⁵³²⁾ "`Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private . . . prejudice that they assume to be both widely and deeply held.'"⁽⁵³³⁾ The legislative history reveals that Congress passed DOMA in violation of these principles.⁽⁵³⁴⁾ Legislations of this sort are unconstitutional in violation of the equal protection component of the Fifth Amendment's Due Process Clause.⁽⁵³⁵⁾

IV.  Conclusion

In Romer v. Evans,⁽⁵³⁶⁾ the Supreme Court concluded that Amendment 2 violated the Equal Protection Clause because it singled out gays and lesbians, and denied them protection across the board--an unprecedented form of legislation.⁽⁵³⁷⁾ Additionally, Amendment 2 was not rationally related to a legitimate government interest, and "seem[ed] inexplicable by anything but animus" toward gays and lesbians.⁽⁵³⁸⁾

Similarly, DOMA is an unprecedented use of the Full Faith and Credit Clause,⁽⁵³⁹⁾ which singles out marriages of same-sex couples in order to deny such marriages a vast number of federal rights and benefits, and allows states to do the same.⁽⁵⁴⁰⁾ Furthermore, DOMA does not rationally further a legitimate government interest.⁽⁵⁴¹⁾ Instead, the motivation behind DOMA was animosity toward gays and lesbians.⁽⁵⁴²⁾ This is an unconstitutional use of legislative power under Romer.⁽⁵⁴³⁾ The "` bare . . . desire to harm a politically unpopular group cannot constitute a legitimate government interest.'"⁽⁵⁴⁴⁾ Therefore, as the Court concluded in Romer, DOMA violates the equal protection component of the Fifth Amendment's Due Process Clause because it discriminates against gays and lesbians "not to further a legislative end but to make them unequal to everyone else."⁽⁵⁴⁵⁾ As stated by Congressman Lewis of Georgia during the congressional debates on DOMA, "I have known racism. I have known bigotry. This bill stinks of the same fear, hatred and intolerance. It should not be called the Defense of Marriage Act. It should be called the defense of mean-spirited bigots act."⁽⁵⁴⁶⁾

Barbara A. Robb^(*)

1. See Peter Baker, President Quietly Signs Law Aimed at Gay Marriages, The Wash. Post, Sept. 22, 1996, at A21.

2. The term "same-sex marriage" will not be used throughout this Note because the term suggests that a new and separate legal entity is being created. In actuality, the same-sex couples in the Hawaii case, Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), (and many other couples) have been fighting for equality under existing marriage laws. See id.; e.g., Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995).

3. See Defense of Marriage Act, Pub. L. No. 104-199, §§ 2-3, 110 Stat. 2419 (1996) (codified at 28 U.S.C. § 1738C & 1 U.S.C. § 7); see also infra note 27 for the full text of DOMA.

4. Baker, supra note 1, at A21.

5. See id.; see also Melissa Healy, Clinton Signals He'd Sign Anti-Gay Marriage Bill, L.A. Times, May 23, 1996, at A15 (explaining that the White House was "acting to defuse a politically potent weapon against President Clinton" when announcing that Clinton would sign DOMA).

6. During his campaign for the presidency in 1992, President Clinton made several promises in support of gay and lesbian civil rights. See Michael Isikoff, Gays Mobilizing for Clinton as Rights Become an Issue, The Wash. Post, Sept. 28, 1992, at A7. Clinton pledged to: "[1] sign an executive order ending the U.S. military policy discriminating against homosexuals, [2] support legislation to amend federal civil rights laws to include sexual orientation, [3] `appoint gays and lesbians to major positions' in his administration, and [4] launch a `Manhattan-type project' to find a cure for AIDS."Id. When Clinton was elected in 1992, he "retreat[ed] from his campaign promise to lift the ban on gays in the military." Susan Yoachum & Carolyn Lochhead, Clinton Orders New Gay-GI Policy/He Concedes Few Will Like Compromise, S.F. Chron., July 20, 1993, at A1. He announced a "Don't Ask, Don't Tell" policy, which "allows gays to serve in the armed forces as long as they do not engage in homosexual acts--or tell their comrades that they are gay." Id. As a result, the military ban against gays and lesbians was codified into law. See 10 U.S.C. § 654 (1994).

7. See Baker, supra note 1, at A21; Healy, supra note 5, at A15 ("A week after charging that the bill is `designed to provoke hostility towards gays and lesbians,' White House spokesman Mike Murry said that Clinton supports the gist of [DOMA] and `would sign that bill if it was presented to him as it's currently written.'").

In the 1992 presidential election, a majority of gays and lesbians voted for Clinton. See Jean Latz Griffin, Most Gays Voted for Clinton, Polls Show, Chi. Tribune, Nov. 6, 1992, at 18 ("Gay and lesbian voters emerged as one of the most cohesive blocks in [the 1992] presidential election, giving a huge majority of their votes to President-elect Bill Clinton, according to two national polls.").

8. See Baker, supra note 1, at A21; Healy, supra note 5, at A15. According to Brian Lunde, former Executive Director of the Democratic National Committee, President Clinton was "`trying to neutralize any issue that might give Senator Dole an advantage.'" See Healy, supra note 5, at A15.

Although a majority of Americans are opposed to marriages of same-sex couples, that opinion is changing. See E.J. Graff, When Heather's Mommies Marry, The Boston Globe, Jan. 5, 1997, at F1. Graff notes that "[l]ast February, 83 percent of Americans opposed same-sex marriage. By August, only 63 percent were opposed." Id. at F5. In fact, "more Americans are in favor of same-sex marriage today than were in favor of interracial marriage [in 1967] when the Supreme Court struck down antimiscegenation laws" in Loving v. Virginia. Id.

9. 852 P.2d 44 (Haw. 1993).

10. See infra note 16 and accompanying text.

11. See The Daily Record (Balt., Md), Hawaii Court Says Gays, Lesbians Can Wed, Dec. 4, 1996, at 19 ("For the first time in United States history, a state court has ruled that civil marriage law cannot discriminate against lesbian and gay couples."); see also Dean v. District of Columbia, 653 A.2d 307, 320, 332-33 (D.C. 1995) (holding that the District's ban on marriages of same-sex couples did not violate the District's Human Rights Act, and did not violate the Due Process Clause and the Equal Protection Clause of the Federal Constitution); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973) (affirming the trial court's decision that a same-sex couple was not entitled to marry, and concluding that there is "no constitutional sanction or protection of the right of marriage between persons of the same sex"); Baker v. Nelson, 191 N.W.2d 185, 186, 187 (Minn. 1971) (holding that the state's marriage statute does not allow marriages of same-sex couples, and that the statute does not violate the First, Eighth, Ninth, and Fourteenth Amendments of the Federal Constitution); De Santo v. Barnsley, 476 A.2d 952, 954 (Pa. Super. Ct. 1984) (holding that there are no common-law marriages of same-sex couples in Pennsylvania); Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. 1974) (holding that the state's marriage statutes did not allow marriages of same-sex couples, and that such a prohibition did not violate the State's or Federal Constitution's Equal Protection Clause).

12. See Let Them Wed, The Economist, Jan. 6-12th, 1996, at 13 (noting that while a few countries are recognizing gay partnerships, "[a]s of today, . . . there is no country which gives homosexuals the full right of marriage"). Currently, four countries have passed laws allowing same-sex couples to register with the state as partners, and acquire many (although not all) of the rights of marriage: Denmark (and Greenland), Iceland, Norway and Sweden. See Rex Wockner, Dutch Gays Will Have Two Ways to Get Hitched (Apr. 2, 1997) <http://www.qrd.org.qrd/world/ wockner/assorted/gay.marriage.in.holland>. Wockner explains that the laws include all of the rights of marriage, except "access to adoption, artificial-conception technology and church weddings." Id. In Iceland, however, "partners can obtain joint custody of each other's biological children." Id.

In Hungary, the Constitutional Court mandated the recognition of common-law marriages of same-sex couples, but such couples do not have access to adoption. See id. Additionally, the cities and local governments in France and Belgium are recognizing same-sex partnerships. See Let Them Wed, The Economist, Jan. 6-12th, 1996, at 13.

Holland is moving in a similar direction. See Wockner, supra. On January 1, 1998, "Dutch gay, lesbian and straight couples will be able to register their partnership and gain every right of marriage except access to adoption[;]" however, the Second Chamber is currently considering a separate piece of legislation that would repeal the adoption exclusion. Id. It is expected that Holland will allow gays and lesbians to marry under ordinary marriage laws by the turn of the century. See id. Preliminary legislation is being prepared by the Dutch government, and a special committee has been assigned to determine the effect of allowing marriage between persons of the same sex on "Holland's international agreements and relationships." Id. For a discussion of the differences between marriage and domestic partnerships, see infra notes 270-79 and accompanying text.

Although no country has recognized civil marriages of same-sex couples, same-sex unions have been recognized in many cultures throughout history. See generally John Boswell, Same-sex Unions in Premodern Europe (revealing that, during the Middle Ages, Catholic and Eastern Orthodox churches sanctioned same-sex unions through ceremonies that were similar to heterosexual marriage ceremonies); William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 Va. L. Rev. 1419 (1993) (providing a thorough analysis on the history of same-sex unions and revealing that same-sex unions were valorized in pre-modern Western cultures (Egypt, Mesopotamia, Greece and Pre-Christian and Christian Rome) and in Non-Western cultures (Native American tribes, Africa, and Asia)).

13. See Baehr, 852 P.2d at 67.

14. See Baehr v. Miike, Civ. No. 91-1394, 1996 WL 694235, at *21-22 (Haw. Cir. Ct. Dec. 3, 1996) (concluding that the state "failed to sustain [its] burden to overcome the presumption that [the Hawaii marriage statute] [was] unconstitutional by demonstrating . . . that the statute furthers a compelling state interest[]" and ordering that the State of Hawaii "is enjoined from denying an application for a marriage license solely because the applicants are of the same sex").

15. See Peter S. Canellos & Ken Kobayashi, Ruling Stops Possible Influx Of Gays, Legal Marriages Will Be Postponed Pending A Review By An Appeals Court, The Boston Globe, Dec. 5, 1996, at A27.

16. See id. (explaining that "few specialists believe the appeal will succeed[,]" and even Hawaii's state Deputy Attorney General, Rick Eichor, acknowledged that the State would probably lose).

17. See infra notes 468-69 and accompanying text.

18. See infra note 491 and accompanying text.

19. See Romer v. Evans, 116 S. Ct. 1620 (1996).

20. Id.

21. See id. at 1629. See infra Part II.E for a full discussion of Romer v. Evans.

22. See Romer, 116 S. Ct. at 1623. See infra note 175 for the full text of Amendment 2.

23. See Romer, 116 S. Ct. at 1623.

24. See H.R. Rep. No. 104-664, at 31-33 (1996) (discussing the constitutionality of DOMA under Romer v. Evans and arguing that DOMA is "plainly constitutional under Romer"); The Defense of Marriage Act: Hearings on S. 1740 Before the Senate Comm. on the Judiciary, 104th Cong. 47-48 (July 11, 1996) (testimony of Cass R. Sunstein, Professor of Law, University of Chicago) (discussing the similarities between DOMA and Romer v. Evans, and how DOMA may be unconstitutional under Romer) [hereinafter Sunstein, Senate Hearing]; The Defense of Marriage Act: Hearings on S. 1740 Before the Senate Comm. on the Judiciary, 104th Cong. 40-41 (July 11, 1996) (statement of Lynn D. Wardle, Professor of Law, Brigham Young University) (asserting that DOMA is constitutional under Romer v. Evans) [hereinafter Wardle, Senate Hearing].

25. See 142 Cong. Rec. S5932 (daily ed. June 6, 1996) (letter from Professor Laurence H. Tribe to Senator Kennedy) ("Congress possesses no power under any provision of the Constitution to legislate any such categorical exemption from the Full Faith and Credit Clause of Article IV."); Sunstein, Senate Hearing, supra note 24, at 45-47 (discussing the constitutional problems with DOMA under the Full Faith and Credit Clause).

26. 116 S. Ct. 1620 (1996).

27. See Defense of Marriage Act, Pub. L. No. 104-199, §§ 2-3, 110 Stat. 2419 (1996) (codified at 28 U.S.C. § 1738C & 1 U.S.C. § 7). Section Two states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.Id. § 2. Section Three states:

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.Id. § 3.

28. See H.R. Rep. No. 104-664, at 25 (1996).

29. See supra notes 27, 28 and accompanying text.

30. 116 S. Ct. 1620 (1996).

31. See infra notes 38-53 and accompanying text.

32. See infra notes 54-134 and accompanying text.

33. See infra notes 135-72 and accompanying text.

34. See infra notes 173-216 and accompanying text.

35. See infra notes 217-321 and accompanying text.

36. See infra notes 322-535 and accompanying text. The Romer Court did not decide the level of scrutiny that will be applied to classifications based on sexual orientation. See Romer v. Evans, 116 S. Ct. 1620 (1996); see also Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-47 (1984) (using the traditional analysis that is applied when determining levels of scrutiny, and deciding that rational basis review will be applied to classifications based on mental retardation). This Note analyzes DOMA under the rational basis test because Romer held that Amendment 2 did not sustain the most conventional constitutional inquiry, namely, rational basis review. See Romer, 116 S. Ct. at 1627. For discussions on whether heightened or strict scrutiny should be applied to government classifications based on sexual orientation see generally Janet Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L. Rev. 503, 506 (1994) (examining the argument from immutability with regard to whether gays and lesbians are a suspect class, and arguing that "pro-gay legal arguments from biological causation should be abandoned"); Gary E. Spitko, A Biological Argument For Gay Essentialism Determinism: Implications For Equal Protection And Substantive Due Process, 18 U. Haw. L. Rev. 571 (1996) (examining recent scientific discoveries on whether sexual orientation is immutable and considering the importance of these discoveries with regard to equal protection and due process analyses); John F. Niblock, Comment: Anti-Gay Initiatives: A Call For Heightened Judicial Scrutiny, 41 UCLA L. Rev. 153 (1993) (examining the arguments for and against whether classifications based on sexual orientation should be subject to strict scrutiny, and proposing that if such classifications are not subjected to strict scrutiny, anti-gay initiatives should be subjected to heightened scrutiny).

37. See infra notes 536-46 and accompanying text.

38. U.S. Const. amend V.

39. Bolling v. Sharpe, 347 U.S. 497, 499 (1954); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213 (1995) (providing that the United States Supreme Court "has always understood [the Due Process Clause of the Fifth Amendment] to provide . . . protection against arbitrary treatment by the Federal Government").

40. See Adarand, 515 U.S. at 217 (stating that "`[t]his Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment'") (alteration in original) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)); Laurence H. Tribe, American Constitutional Law § 16-1, at 992 (1978) ("The due process clauses of the fifth and fourteenth amendments have . . . been held to yield norms of equal treatment indistinguishable from those of the equal protection clause." (citations omitted)).

41. U.S. Const. amend XIV, § 1.

42. See Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-42 (1985).

43. Id.

44. See id. at 440 (citations omitted).

45. Tribe, supra note 40, § 16-2, at 995.

46. See Cleburne, 473 U.S. at 440.

47. See id. When a statute classifies by race, alienage, or national origin, such a law will be "subjected to strict scrutiny and will be sustained only if [it is] suitably tailored to serve a compelling state interest.&q