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.'"(527) Congressman Frank said that gays and lesbians are seeking equal treatment, not Congresman Bono's approval.(528) 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." Id. (citations omitted).

48. See Shaw v. Hunt, 116 S. Ct. 1894, 1899 (1996) (stating that a North Carolina redistricting plan did not survive strict scrutiny because it was not "narrowly tailored to serve a compelling state interest").

49. See Cleburne, 473 U.S. at 441 ("A gender classification fails unless it is substantially related to a sufficiently important governmental interest. . . . [O]fficial discriminations resting on [illegitimacy] are also subject to somewhat heightened review." (citations omitted)).

50. See Craig v. Boren, 429 U.S. 190, 197 (1976).

51. See Cleburne, 473 U.S. at 441-42, 446. The Court stated, "we have declined . . . to extend heightened review to differential treatment based on age. . . . In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end." Id. at 441-42. With regard to mental retardation, the Court explained, "[o]ur refusal to recognize the retarded as a quasi-suspect class does not leave them entirely unprotected from invidious discrimination. To withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose." Id. at 446.

52. See Romer v. Evans, 116 S. Ct. 1620 (1996). The Romer Court did not decide the level of scrutiny that will be applied to classifications based on sexual orientation. See id.; see also Cleburne, 473 U.S. at 439-47 (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).

53. See Cleburne, 473 U.S. at 472-73 n.24. The Court explained that "the `political powerlessness' of a group . . . [and] immutability of the trait at issue may be relevant" when determining whether heightened or strict scrutiny is warranted. Id. And, "because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure." Id. (citations omitted). See also United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938) (stating that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial scrutiny").

54. 852 P.2d 44 (Haw. 1993).

55. See Haw. Rev. Stat. § 572-1 (1993 & Supp. 1996).

56. Baehr, 852 P.2d at 67 (Levinson, J., plurality opinion).

57. See id. (Levinson, J., plurality opinion).

58. See id. at 49-50 n.3 (Levinson, J., plurality opinion). The Department of Health (DOH) sent a letter to each of the couples which stated, "`[t]he law of Hawaii does not treat a union between members of the same sex as a valid marriage. . . . A valid marriage within the meaning of ch. 572, Hawaii Revised Statutes, must be one in which the parties to the marriage contract are of different sexes.'" Id. (Levinson, J., plurality opinion) (quoting Letter from Assistant Chief and State Registrar, Office of Health Status Monitoring to Plaintiffs (Apr. 12, 1991)).

59. See id. (Levinson, J., plurality opinion).

60. See id. at 50 (Levinson, J., plurality opinion). Article I, Section 6 of the Hawaii Constitution provides that "[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." Haw. Const. art. I, § 6 (1978). Article I, Section 5 states that "[n]o person shall be deprived of life, liberty, or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry." Id. § 5.

61. Baehr, 852 P.2d at 51-52 (Levinson, J., plurality opinion). DOH argued that the plaintiffs failed to state a claim upon which relief could be granted for several reasons: (1) Hawaii's marriage laws construe "marriage" as a union between a man and a woman; (2) the plaintiffs do not have a cognizable right because there is no right to enter into a homosexual marriage; (3) Hawaii's marriage laws do not "`burden, penalize, infringe, or interfere in any way with the [plaintiffs'] private relationships'"; (4) Hawaii is not obligated to officially approve homosexual unions; (5) Hawaii's marriage laws "`protect and foster and may help to perpetuate the basic family unit, regarded as vital to society, that provides status and a nurturing environment to children born to married persons'" and "`constitute a statement of the moral values of the community in a manner that is not burdensome to [the] plaintiffs; (6) "assuming the plaintiffs are homosexuals (a fact not pleaded in the plaintiffs' complaint)," they are not a suspect or quasi-suspect class, and therefore heightened scrutiny is not required; and (7) even if heightened scrutiny was required, Hawaii's marriage laws would be upheld. See id. (Levinson, J., plurality opinion) (alterations in original) (footnote omitted) (quoting Brief for Appellee, Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (No. 15689)).

The plurality pointed out that DOH was correct in stating that the plaintiffs' complaint did not state that the plaintiffs are homosexuals. Therefore, it was DOH who raised the issue of homosexuality. See id. at 52 n.12 (Levinson, J., plurality opinion).

62. See id. at 52 (Levinson, J., plurality opinion).

63. See id. at 68 (Levinson, J., plurality opinion).

64. See id. at 48. Chief Judge Moon joined in the opinion. See id.

65. See Baehr, 852 P.2d at 57 (Levinson, J., plurality opinion). When considering whether the plaintiffs had a fundamental right to "same-sex marriage," the plurality determined that the court must "look not to `personal and private notions,' but `to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] . . . as to be ranked as fundamental."'" Id. (Levinson, J., plurality opinion) (quoting Griswold v. Connecticut, 381 U.S. 479, 493 (Goldberg, J., concurring) (alterations in original) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934))). After applying this approach to the plaintiffs' case, the plurality opined, "we do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people. . . . [Therefore, the plaintiffs] do not have a fundamental right to same-sex marriage." Id. (Levinson, J., plurality opinion).

66. See id. at 57 (Levinson, J., plurality opinion).

67. The plurality noted that "`homosexual' and `same-sex' marriages are not synonymous . . . [because] [p]arties to a `union between a man and a woman' may or may not be homosexuals [and] [p]arties to a same-sex marriage could theoretically be either homosexuals or heterosexuals." Baehr, 852 P.2d at 51 n.11 (Levinson, J., plurality opinion). The plurality also pointed out that the plaintiffs never stated that they were homosexuals; rather, DOH raised the issue of homosexuality. See id. at 52 n.12 (Levinson, J., plurality opinion).

68. Id. at 60 (Levinson, J., plurality opinion). The plurality found that the Hawaii marriage statute facially discriminated against same-sex couples because the language of the statute expressly referred to marriages as unions between "a male and a female." See id. (Levinson, J., plurality opinion).

69. See id. at 61 (Levinson, J., plurality opinion). DOH argued that, "`the right of persons of the same sex to marry one another does not exist because marriage, by definition and usage, means a special relationship between a man and a woman.'" Id. (Levinson, J., plurality opinion) (quoting DOH's brief at 7).

70. See id. (Levinson, J., plurality opinion).

71. See id. at 61-63 (Levinson, J., plurality opinion). The cases used by DOH included: 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, 186-87 (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); 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); and De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984) (holding that there are no common-law marriages of same-sex couples in Pennsylvania).

Baker was distinguished because no state constitutional claims were raised or addressed. See Baehr, 852 P.2d at 61 (Levinson, J., plurality opinion). The plurality decided that De Santo was not relevant to the Baehr case because De Santo involved common law marriage. See id. (Levinson, J., plurality opinion). In Jones, the plaintiffs' equal protection rights were not asserted under federal or state law. See Jones, 501 S.W.2d at 589-90. As such, the plurality declined to follow the Jones decision, because the Jones court did not address the significance of the United States Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967) (holding that Virginia's miscegenation laws were unconstitutional under the Equal Protection Clause and the Due Process Clause). See Baehr, 852 P.2d at 62 (Levinson, J., plurality opinion). Finally, The plurality rejected the court's reasoning in Singer--that the denial of a marriage license was not due to the plaintiffs' sex, but due to the "nature of marriage itself." See id. at 63. It considered this reasoning to be "conclusory" in light of the Loving decision. Id. at 63 (Levinson, J., plurality opinion).

72. 388 U.S. 1 (1967).

73. See Baehr, 852 P.2d at 61-63 (Levinson, J., plurality opinion).

74. See Loving, 388 U.S. at 12 ("There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.").

75. See id. at 3. The trial judge in Loving had stated that:

"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 for the races to mix."Id. (quoting the trial judge). In Baehr, the plurality explained that the trial judge in Loving based his opinion on the notion "that Divine Providence had not intended that the marriage state extend to interracial unions." Baehr, 852 P.2d at 62 (Levinson, J., plurality opinion).

76. Loving, 388 U.S. at 11.

77. See Baehr, 852 P.2d at 63 (Levinson, J., plurality opinion).

78. Id. (Levinson, J., plurality opinion).

79. Id. (Levinson, J., plurality opinion).

80. Id. (Levinson, J., plurality opinion).

81. Id. at 67 (Levinson, J., plurality opinion). Unlike the Federal Equal Protection Clause, see U.S. Const. amend. XIV, § 1, the Hawaii Constitution explicitly prohibits the denial of equal protection under the laws on the basis of sex. See Haw. Const. art. I, § 5 (1978). For the text of Hawaii's equal protection clause, see supra note 60.

The plurality based its decision on Frontiero v. Richardson. See id. at 66-67. In Frontiero, the United States Supreme Court concluded that federal statutes, which allowed servicemen to claim dependent wives, but did not allow servicewomen to claim dependent husbands, were unconstitutional because they established differential treatment based on sex. See Frontiero v. Richardson, 411 U.S. 677, 688-91 (Brennan, J., plurality opinion), 691-92 (Powell, J., concurring) (1973). The plurality in Frontiero concluded that sex was a suspect classification, but Justices Powell, Blackmun, and the Chief Justice concluded that, because the Equal Rights Amendment had been submitted to the states for ratification, it was not necessary to decide whether sex was a suspect classification. See id. at 688 (Brennan, J., plurality opinion), 727 (Powell, J., concurring). Based on Powell's concurring opinion, the plurality, in Baehr, drew the following inference: "had the Equal Rights Amendment been incorporated into the United States Constitution, at least seven members (and probably eight) of the Frontiero Court would have subjected statutory sex-based classifications to `strict' judicial scrutiny." Baehr, 852 P.2d at 67 (Levinson, J., plurality opinion).

82. Baehr, 852 P.2d at 68 (Burns, J., concurring).

83. See id. at 69 (Burns, J., concurring) ("[A]ny state action that discriminates against a person because of his or her `sex' is subject to strict scrutiny.").

84. Id. (Burns, J., concurring). Immutability is one of the three characteristics of a group that a court will consider when determining whether government classifications of that group should be subjected to heightened or strict scrutiny. See Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 472 n.24 (1984) (Marshall, J., concurring in the judgment in part and dissenting in part) (stating that "immutability of the trait at issue may be relevant" when determining whether heightened or strict scrutiny should be applied). For a discussion of the other characteristics, see supra Part II.A.

85. See Baehr, 852 P.2d at 70 (Burns, J., concurring).

86. Retired Justice Hayashi, who was temporarily assigned to sit with the Hawaii Supreme Court due to a vacancy, would have joined Judge Heen, but his assignment expired before this opinion was filed. See id. at 48.

87. See id. at 70-71 (Heen, J., dissenting). Judge Heen declared that "Loving is simply not authority for the plurality's proposition that the civil right to marriage must be accorded to same-sex couples." Id. at 70 (Heen, J., dissenting). Heen supported this assertion by explaining that "the plaintiff in Loving was not claiming a right to same-sex marriage. Loving involved a marriage between a white male and a black female whose marriage . . . was refused recognition in Virginia under that state's miscegenation laws." Id. (Heen, J., dissenting).

88. See id. at 71 (Heen, J., dissenting).

89. See id. (Heen, J., dissenting).

90. See id. at 72 (Heen, J., dissenting).

91. Baehr, 852 P.2d at 74 (Heen, J., dissenting).

92. See id. at 74-75.

93. See id. at 74.

94. See id. at 74-75.

95. See H.R. Rep. 104-664 at 5 n.13 (1996) ("It appears that the final disposition was three justices [Levinson, Moon, and Nakayama, JJ.] forming a majority, with Justice Burns concurring in the result only, and Justice Heen dissenting.").

96. 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"). The State argued that the statute advanced the following interests: (1) "protecting the health and welfare of children and other persons"; (2) "fostering procreation within a marital setting"; (3) "securing or assuring recognition of Hawaii marriages in other jurisdictions"; (4) "protecting the State's public fisc [sic] from the reasonably foreseeable effects of State approval of same-sex marriage in the laws of Hawaii"; and (5) "protecting civil liberties, including the reasonably foreseeable effects of State approval of same-sex marriages, on its citizens." Id. at 11-12. The main argument advanced by the state was that the statute would protect the welfare of children. See id. at 12. The court rejected this argument and found that "[g]ay 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." Id. at 27. Additionally, the court found that the State "failed to establish a causal link between allowing same-sex marriage and adverse effects upon the optimal development of children." Id.

97. See Canellos & Kobayashi, supra note 15, at A27.

98. See Deborah M. Henson, Will Same-Sex Marriages Be Recognized in Sister States?: Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriages Following Hawaii's Baehr v. Lewin, 32 U. of Louisville J. of Fam. L. 551, 559 (1994) ("Courts will have to decide whether to uphold the validity of the marriage contracted in a foreign state by applying the other state's law or to invalidate the marriage by applying the forum's law."); Barbara J. Cox, Same-Sex Marriage and Choice of Law: If We Marry In Hawaii, Are We Still Married When We Return Home, 1994 Wis. L. Rev. 1033, 1062 (explaining that, if a state allows marriages of same-sex couples, "the question will remain as to what extent an out-of-state same-sex marriage by one state's domiciliaries will be validated upon the couple's return to that domicile").

99. See Henson, supra note 98, at 559 ("Only when the partners try to obtain some incident of marriage might the legal system become involved."); Cox, supra note 98, at 1062-63. Professor Cox explains that when a same-sex couple marries out-of-state and then returns to their domicile, "[a]t some point, a benefit provider (be it a health insurance carrier, health club owner, workers' compensation board, or other institution) will refuse to accept that assertion." Id. at 1062. At that time, "the couple will proceed to litigate their marital status within their domicile." Id. at 1062-63.

100. 854 P.2d 44 (Haw. 1993).

101. See id. at 59. The rights and benefits are as follows:

(1) a variety of state income tax advantages, including deductions, credits, rates, and estimates . . . ; (2) public assistance from and exemptions relating to the Department of Human Services . . . ; (3) control, division, acquisition, and disposition of community property . . . ; (4) rights relating to dower, courtesy, and inheritance . . . ; (5) rights to notice, protection, benefits, and inheritance . . . ; (6) award of child custody and support payments in divorce proceedings . . . ; (7) the right to spousal support . . . ; (8) the right to enter into premarital agreements . . . ; (9) the right to change of name . . . ; (10) the right to file a nonsupport action . . . ; (11) post-divorce rights relating to support and property division . . . ; (12) the benefit of the spousal privilege and confidential marital communications . . . ; (13) the benefit of the exemption of real property from attachment or execution . . . ; and (14) the right to bring a wrongful death action.Id.

102. See supra notes 99, 101 and accompanying text.

103. U.S. Const. art. IV, § 1.

104. See Brainerd Currie, Full Faith And Credit, Chiefly To Judgments: A Role For Congress, 1964 Sup. Ct. Rev. 89 ("The Full Faith and Credit Clause, as implemented by Congress, has two principal functions: (1) it enjoins a high degree of deference to the judgments of sister states and (2) it enjoins a modest degree of deference to the laws of sister states."). See infra note 123 for cases in which the Supreme Court has ruled that states, in certain circumstances, are not required to give recognition to sister states' laws.

105. See H.R. Rep. No. 104-664, at 38 (1996) ("The Supreme Court has not yet passed on the manner in which marriages per se are entitled to full faith and credit . . . .").

106. See id. at 9 (stating that, although Congress "believes that States currently possess the ability to avoid recognizing a same-sex `marriage' license from another State, [Congress] recognizes that that conclusion is far from certain").

107. See Sunstein, Senate Hearing, supra note 24, at 44.

108. See Albert A. Ehrenzweig, A Treatise on the Conflict of Laws § 138, at 376 (1962) ("Current doctrine and court language assume a `governing' law of the place of celebration."); William M. Richman & William L. Reynolds, Understanding Conflict of Laws § 116, at 362 (2d ed. 1993) ("The overwhelming tendency in American conflicts cases is to validate the marriage.").

109. Richman & Reynolds, supra note 108, § 116, at 362.

110. See Restatement of Conflict of Laws § 121 (1934) ("Except as stated in §§ 131 and 132, a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with.").

111. See Restatement of Conflict of Laws § 132 (1934) ("A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere . . . .").

112. See infra notes 113-14 and accompanying text.

113. Restatement (Second) of Conflict of Laws § 283 (1971).

114. Id.

115. Eugene F. Scoles & Peter Hay, Conflict of Laws § 13.9, at 432 (1984).

116. Id. Professors Scoles and Hay explain that "to deny the marriage may relieve one from an obligation solemnly entered into [and] it may defeat family expectations of many years standing . . . ." Id. Additionally, it would frustrate "the desirability of having uniformity in the recognition of the marital status." 52 Am. Jur. 2d Marriage § 80 (1970).

117. See Scoles & Hay, supra note 115, § 13.11, at 435 (incestuous marriages) ("Instances where a marriage good where contracted has been declared void at the domicile because of relationship of the parties are in a minority."(footnote omitted)); id. § 13.12, at 436 (marriages involving minors). In jurisdictions where marriages between minors are prohibited, the courts have generally upheld such marriages if they were "valid where entered into." Id.

118. Restatement (Second) of Conflict of Laws § 283 (1971). Section 283 states:

(1) The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage under the principles stated in  § 6.

(2) A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.Id.

119. See Cox, supra note 98, at 1063-64. "The Restatement (Second) of Conflict of Laws provides a system of analysis for courts seeking to resolve this question of first impression." Id. at 1063. Therefore, "the courts must [begin] by considering the statutory directives of the various states in determining whether [a couple's] marriage will be validated within their domicile." Id. at 1064.

120. § 210, 9A U.L.A. 176 (1987). The Act states:

All marriages contracted within this State prior to the effective date of this Act, or outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicil of the parties, are valid in this State.Id.

121. See Cox, supra note 98, at 1066 ("Numerous states have adopted some form of section 210 of the Uniform Marriage and Divorce Act, which was intended to validate marriages celebrated outside a state within the adopting state."). Professor Cox lists the following states: Arizona (Ariz. Rev. Stat. Ann. § 25-112 (1991)); Arkansas (Ark. Code Ann. § 9-11-107 (Michie 1993)); California (Cal. Fam. Code § 308 (West 1994)); Colorado (Colo. Rev. Stat. Ann. § 14-2-112 (West 1992)); Connecticut (Conn. Gen. Stat. Ann. § 46b-24a (West 1993 & Supp. 1994)); the District of Columbia (D.C. Code Ann. § 30-105 (1993)); Georgia (Ga. Code Ann. § 53-214 (1991)); Hawaii (Haw. Rev. Stat. § 572-3 (1993)); Idaho (Idaho Code § 32-209 (1983)); Illinois (750 Ill. Comp. Stat. Ann. 5/213 (West 1993)); Kansas (Kan. Stat. Ann. § 23-115 (1992)); Kentucky (Ky. Rev. Stat. Ann. § 402.040 (Michie 1993)); Louisiana (La. Civ. Code Ann. art. 3520 (West 1994)); Michigan (Mich. Comp. Laws Ann. § 551-271 (West 1989)); Minnesota (Minn. Stat. Ann. § 517.20 (West 1990)); Montana (Mont. Code Ann. § 40-1-104 (1993)); Nebraska (Neb. Rev. Stat. § 42-117 (1988)); New Mexico (N.M Stat. Ann. § 40-1-4 (Michie 1989)); North Dakota (N.D. Cent. Code § 14-03-08 (1991)); South Dakota (S.D. Codified Laws § 25-1-38 (Michie 1992)); Utah (Utah Code Ann. § 30-1-4 (1989)); Virginia (Va. Code Ann. § 20-371 (Michie 1990)); and Wyoming (Wyo. Stat. Ann. § 20-1-111 (Michie 1987)). See id. at 1066-67 n.185-202.

122. See Cox, supra note 98, at 1070 ("But even states with validation statutes may turn to public policy to determine whether [a] couple's marriage would be valid."); 52 Am. Jur. 2d Marriage § 81 (1970) ("While some of these validation statutes contain exceptions refusing recognition to certain kinds of marriages, it is clear that even in the absence of such express exceptions, foreign marriages will not be recognized in the enacting state if they contravene a strong public policy of that state.").

123. See Nevada v. Hall, 440 U.S. 410, 424 (1979) (holding that the Full Faith and Credit Clause does not require a forum state to apply another state's laws if such laws violate a legitimate public policy of the forum state); Alaska Packers Ass'n v. Industrial Accident Comm'n, 294 U.S. 532, 547 (1935) (holding that when conflicts of law arise in a suit, courts should not be compelled to substitute their own laws with the laws of the other state; rather, the courts should resolve the issue by appraising the government interests of each jurisdiction).

124. See supra note 105 and accompanying text.

125. See 52 Am. Jur. 2d Marriage § 82 (1970) (explaining that "[t]his strong public policy is frequently evidenced by statutes"); Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L. J. 1965, 1972 (1997) (explaining that although the public policy exception usually refers to judge-made rules, it is a "content-based principle" and therefore includes statutes).

126. See Paula L. Ettelbrick, Wedlock Alert: A Comment on Lesbian and Gay Family Recognition, 5 J.L. & Pol'y 107, 108 n.2 (1996) ("State legislatures across the country, fearing that they might be forced to eventually recognize marriages of lesbian and gay couples who will undoubtedly flock across the country to Hawaii to get married, are responding by passing laws prohibiting recognition of such marriages." (citations omitted)); e.g., Alaska Stat. § 25.05.013 (Michie 1996); Ariz. Rev. Stat. Ann. § 25-101(c) (West 1991 & Supp. 1996); Ga. Code Ann. § 19-3-3.1 (Supp. 1996); Idaho Code § 32-209 (1996); 750 Ill. Comp. Stat. 5/212 (West 1996); Ind. Code § 31-7-1-2 (1997); Mich. Comp. Laws § 551.2-4 (1996); 23 Pa. Cons. Stat. § 1740 (1997); S.C. Code Ann. §§ 20-1-10, -15 (Law. Co-op. Supp. 1996); Tex. Fam. Code Ann. § 1.01 (West 1997); Utah Code Ann. § 30-1-2(5) (1995); and Va. Code Ann. § 20-45.2 (Michie 1997).

127. See Cox, supra note 98, at 1074 n.244 (listing Illinois (750 Ill. Comp. Stat. 5/216 (West 1993)); Massachusetts (Mass. Gen. Laws ch. 207, § 10 (1996)); Vermont (Vt. Stat. Ann. tit. 15, § 5 (1993)); and Wisconsin (Wis. Stat. § 765.04 (1993)).

128. See Mass. Gen. Laws ch. 207, § 10 (1996). Section Ten states:

If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth.Id.

129. Cox, supra note 98, at 1075.

130. Cox, supra note 98, at 1077 (discussing Wheelock v. Wheelock, 154 A. 665 (Vt. 1931), Schwartz v. Schwartz, 236 Ill. App. 336 (1925), and Reifschneider v. Reifschneider, 89 N.E. 255 (Ill. 1909)); see also Scoles & Hay, supra note 115, § 13.13, at 437 ("The cases under the evasion statutes form the primary authority for the recognition of the domicile immediately after the marriage as having the power, although seldom exercised in absence of statute, to deny recognition of an otherwise valid foreign marriage." (emphasis added)).

131. See Cox, supra note 98, at 1077 (explaining that if an express prohibition of same-sex marriage is required before the state's marriage evasion statute would be applied, then a "same-sex marriage should be upheld as valid").

132. See supra note 105; see generally Kramer, supra note 125 (arguing that the public policy exception is unconstitutional under the Full Faith and Credit Clause).

133. See Report to the Honorable Henry J. Hyde, Chairman, Committee on the Judiciary House of Representatives, United States General Accounting Office, Jan. 31, 1997, at 2 (Fed. Doc. Clearing House 1996) (reporting that, after conducting several searches in databases that contain the text of federal laws, there are "1049 federal laws classified to the United States Code in which marital status is a factor") [hereinafter GAO Report]. See infra notes 235-46 and accompanying text for a comprehensive list of the federal benefits attached to marriage.

134. See H.R. Rep. No. 104-664, at 10 (1996) (stating that "a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of rights and benefits").

135. See id. at 2 ("[DOMA] is a response to a very particular development in the State of Hawaii. . . . The prospect of permitting homosexual couples to `marry' in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States.").

136. See Holly Idelson, GOP Sets Pre-Emptive Strike On Same-Sex Marriages, 54 Cong. Q., May 18, 1996, at 1393.

137. See infra notes 138, 143 and accompanying text.

138. See Defense of Marriage Act, Pub. L. No. 104-199, § 2, 110 Stat. 2419 (1996) (codified at 28 U.S.C. § 1738C). Section 1738C 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 a claim arising from such relationship.Id.

139. H.R. Rep. 104-664, at 25 (1996).

140. U.S. Const. art. IV, § 1.

141. See H.R. Rep. 104-664, at 25-26 (1996). The House Report states that Congress passed DOMA under the "second sentence of the Full Faith and Credit Clause to . . . prescribe[] what (if any) effect shall be given by the States to the public acts, records, or proceedings of other states relating to homosexual `marriage.'" Id. at 25.

142. See 142 Cong. Rec. S5931-33 (daily ed. June 6, 1996) (letter from Prof. Laurence H. Tribe to Sen. Kennedy). Professor Tribe states:

But it is as plain as words can make it [that] congressional power to "prescribe . . . the effect" of sister-state acts, records, and proceedings, within the context of the Full Faith and Credit Clause, includes no congressional power to prescribe that some acts, records and proceedings that would otherwise be entitled to full faith and credit under the Full Faith and Credit Clause as judicially interpreted shall instead be entitled to no faith or credit at all!Id. at S5932. See Sunstein, Senate Hearing, supra note 24, at 46 (concluding that the Full Faith and Credit Clause "gives Congress power to help ensure recognition of sister-state judgments and help ensure the smooth functioning of a federal system, but emphatically not that it authorizes Congress to pick and choose among the judgments that states should be required to recognize"). But see Wardle, Senate Hearing, supra note 24, at 29-30 ("Congress has the authority to protect the states and federal programs from [same-sex marriage advocates'] abuse of federal law, and it should use its authority to protect the balance of our Constitution.").

143. See Defense of Marriage Act, Pub. L. No. 104-199, § 3, 110 Stat. 2410 (1996) (codified at 1 U.S.C. § 7). Section 7 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.

144. See 142 Cong. Rec. H7485-86 (daily ed. July 12, 1996).

145. See 142 Cong. Rec. S10129 (daily ed. Sept. 10, 1996). Additionally, several amendments were offered and defeated. See 142 Cong. Rec. S10129, S10139 (Sept. 10, 1996); H.R. Rep. No. 104-664, at 43-44 (1996). Four amendments were offered in the House and one in the Senate. See id. The amendment that was offered in the Senate would have added sexual orientation (as a protected status) to Title VII of the Civil Rights Act. See 142 Cong. Rec. S10129 (daily ed. Sept. 10, 1996). It was defeated by a vote of 50 to 49. See id. at S10139.

In the House, two amendments were offered by Congressman Frank and the other two were offered by Congresswoman Schroeder. See H.R. Rep. 104-664, at 43-44 (1996). The first amendment offered by Congressman Frank would have repealed the section of DOMA that denies federal benefits to married same-sex couples by defining marriage as a union between a man and a woman. See id. at 43. The second amendment provided that if a state democratically decided, either by legislation, citizens initiative, or referendum that the state's definition would apply for federal purposes. See id.

The two amendments introduced by Congresswoman Schroeder were intended to address the actual threats to marriage. See id. at 44. One amendment would have amended the federal definition of marriage to include the word "monogamous" so that nonmonogamous marriages would not be entitled to federal benefits. See id. Schroeder's second amendment would have also changed the federal definition of marriage by excluding heterosexual marriages "in which either of the parties ha[d] previously been granted a divorce which was not determined on fault grounds and in which property and support issues were not resolved in accordance with fault findings." Id. Schroeder argued that no-fault divorces were a threat to marriages of opposite-sex couples, not same-sex unions. See id. Schroeder asserted that no-fault divorces allowed many people to abandon their spouses without paying financial support. See id.

146. See Defense of Marriage Act, Pub. L. No. 104-199, §§ 2-3, 110 Stat. 2419 (1996) (codified as 28 U.S.C. § 1738C and 1 U.S.C. § 7).

147. See H.R. Rep. No. 104-664, at 12 (1996).

148. See 142 Cong. Rec. S10109 (daily ed. Sept. 10, 1996) (statement of Sen. Byrd). Senator Byrd of West Virginia stated, "throughout the annals of human experience . . . humanity has discovered that the permanent relationship between men and women is a keystone to the stability, strength, and health of human society." Id. (statement of Sen. Byrd). Senator Gramm of Texas asserted that "the traditional family has stood for 5,000 years. There is no moment in recorded history when the traditional family was not recognized and sanctioned by a civilized society. . . ." Id. at S10105 (statement of Sen. Gramm). Congressmen Weldon of Florida argued, "[w]e must work to strengthen the American family, which is the bedrock of our society. And, marriage of a man and a woman is the foundation of the family." 142 Cong. Rec. H7493 (daily ed. July 12, 1996) (statement of Rep. Weldon). Congressman Barr of Georgia stated, "marriage throughout the entire history of not only our civilization but Western civilization has meant the legal union between one man and one woman." Id. at H7275 (statement of Rep. Barr). But see generally Boswell, supra note 12 (revealing that, during the Middle Ages, Catholic and Eastern Orthodox churches sanctioned same-sex unions through ceremonies that were similar to heterosexual marriage ceremonies); Eskridge, supra note 12 (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).

149. See 142 Cong. Rec. S10109 (daily ed. Sept. 10, 1996) (statement of Sen. Byrd); H.R. Rep. No. 104-664, at 12-13 (1996). Senator Byrd of West Virginia argued that the purpose of heterosexual marriage "is primarily for the establishment of a home atmosphere in which a man and a woman . . . bring into being children for the fulfillment of their love for one another and for the greater good of the human community at large." 142 Cong. Rec. S10109 (daily ed. Sept. 10, 1996) (statement of Sen. Byrd). With regard to same-sex relationships, Senator Byrd asserted that "[o]ut of such relationships children do not result[,] . . . emotional bonding oftentimes does not take place, and . . . such relationships do not result in the establishment of `families' as society universally interprets that term." Id. (statement of Sen. Byrd).

150. 142 Cong. Rec. H7493 (daily ed. July 12, 1996) (statement of Rep. Weldon). Senator Faircloth of North Carolina argued that "[s]ame-sex unions do not make strong families." 142 Cong. Rec. S10117 (daily ed. Sept. 10, 1996) (statement of Sen. Faircloth). 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." Id. at S10111 (statement of Sen. Byrd).

151. 142 Cong. Rec. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr).

152. See id. at H7276 (statement of Rep. Largent). Congressman Largent of Oklahoma questioned: if the definition of marriage includes same-sex unions, "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? . . . Logically there would be no stopping place." Id. (statement of Rep. Largent). Congressman McInnis of Colorado stated, "I believe that the tradition of marriage, as recognized between one man and one woman, not one man and five women, not one man and one man or one woman and one woman . . . should be continued to be recognized. . . ." Id. at H7274 (statement of Rep. McInnis). Congressman Hyde of Illinois argued that "most people do not approve of homosexual conduct. They do not approve of incest. They do not approve of polygamy. . . ." Id. at H7501 (statement of Rep. Hyde).

153. See id. at H7276 (statement of Rep. Largent). Congressman Largent of Oklahoma asserted that marriages of same-sex couples would "be the final blow to the American family." Id. (statement of Rep. Largent). Senator Byrd of West Virginia argued that "traditional marriage as an institution is struggling. Divorce is far too frequent. . . . Certainly we do not want to launch a further assault on marriage by blurring its definition. . . ." 142 Cong. Rec. S10110 (daily ed. Sept. 10, 1996) (statement of Sen. Byrd). Congressman Lipinski of Illinois stated:

Homosexual marriages would destroy thousands of years of tradition which has upheld our society. Marriage has already been undermined by no-fault divorce, pregnancies out of wedlock, and sexual promiscuity. Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation.142 Cong. Rec. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski). Congressman Delay of Texas supported DOMA arguing that "[s]uch attacks on the institution of marriage will only take us further down the road of social deterioration." Id. at H7487 (statement of Rep. Delay). Congressman Smith of Texas argued:

The institution of marriage sets a necessary and high standard. Anything that lowers that standard, as same-sex `marriages' do, inevitably belittles marriage.

 . . .

Traditional marriage has served across the majority of cultures as a foundation for a stable society. Undermining traditional marriage by forcing States to legalize same-sex `marriages' will have far-reaching social consequences. . . . We should not undermine the standards that elevate civilization.Id. at H7494 (statement of Rep. Smith).

154. See supra note 147.

155. 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer) ("God laid down that one man and one woman is a legal union.").

156. Id. at H7493 (statement of Rep. Smith).

157. See supra note 147; infra notes 158-61 and accompanying text.

158. See 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of Rep. Largent). Congressman Largent of Oklahoma stated:

If the State court in Hawaii legalizes same-sex marriage, homosexual couples from other States around the country will fly to Hawaii and marry. These same couples will then go back to their respective States and argue that the full faith and credit clause of the U.S. Constitution requires their home State to recognize their union as a marriage.Id. (statement of Rep. Largent).

159. See id. at H7277 (statement of Rep. Hoke). Congressman Hoke of Ohio argued, "The fact is that the impending recognition of same-sex marriages in Hawaii has raised the probability that all other states . . . are going to be compelled to recognize and enforce the Hawaii marriage contract under the full faith and credit clause of the U.S. Constitution." Id. (statement of Rep. Hoke). Senator Gramm of Texas stated, "a failure to pass the Defense of Marriage Act here today will require the State of Texas, the State of Kansas, and every other State in the Union to recognize and give full faith and credit to single-sex marriages which occur in Hawaii." 142 Cong. Rec. S10106 (daily ed. Sept. 10, 1996) (statement of Sen. Gramm).

160. See 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of Rep. Largent). Congressman Largent of Oklahoma argued, "We in Congress can prevent confusion and litigation in 49 States by passing this modest bill." Id. (statement of Rep. Largent).

161. See id. at H7272-73 (statement of Rep. McInnis). Congressman McInnis of Colorado argued, "this country does not want . . . one State out of 50 States . . . to be able to mandate its wishes upon every other State in the Union. What this bill does is it allows every State to make their own individual decision." Id. (statement of Rep. McInnis). Congressman Ensign of Nevada argued that DOMA "says that States should determine their own policy." Id. at H7493-94 (statement of Rep. Ensign). Congressman Lipinski of Illinois asserted that DOMA "would safeguard the rest of the country from the decision made by one State." Id. at H7495 (statement of Rep. Lipinski). Senator Craig of Idaho argued that "DOMA actually reinforces States' rights. It prevents one State from imposing upon all others its own particular interpretation of the law." 142 Cong. Rec. S10101 (daily ed. Sept. 10, 1996) (statement of Sen. Craig).

162. See supra note 147; infra notes 163-65 and accompanying text.

163. See 142 Cong. Rec. H7484 (daily ed. July 12, 1996) (statement of Rep. Sensenbrenner); H.R. Rep. No. 104-664, at 18 (1996). In support of DOMA, Congressman Sensenbrenner of Wisconsin asserted that legalizing marriages of same-sex couples in Hawaii would have a tremendous effect on the federal government because "[t]he Federal Government currently extends benefits, rights, obligations, and privileges on the basis of marital status. These include Social Security survivor and Medicare benefits, veterans' benefits, Federal health, life insurance and pension benefits and immigration privileges." 142 Cong. Rec. H7484 (daily ed. July 12, 1996) (statement of Rep. Sensenbrenner).

164. See 142 Cong. Rec. S10111 (daily ed. Sept. 10, 1996) (statement of Sen. Byrd). Senator Byrd of West Virginia argued, "I do not think . . . it is inconceivable that the costs associated with such a change could amount to hundreds of millions of dollars, if not billions . . . of Federal taxpayer dollars." Id. (statement of Sen. Byrd). Senator Burns of Montana stated, "[g]iven the budget difficulties we are currently facing, it would be an understatement to say that [legalizing marriages of same-sex couples] could have an enormous financial impact on our country." Id. at S10116 (statement of Sen. Burns).

165. See 142 Cong. Rec. H7489 (daily ed. July 12, 1996) (statement of Rep. Canady). Congressman Canady of Florida argued that it is within Congress' prerogative "to determine that [federal] funds will not be used to support an institution which is rejected by the vast majority of the American people." Id. (statement of Rep. Canady). Congressman Weldon of Florida stated, "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." Id. at H7493 (statement of Rep. Weldon).

166. See infra notes 167-72 and accompanying text.

167. See H.R. Rep. No. 104-664, at 36 (1996). Those opposed to DOMA argued that it was unnecessary for two reasons. First, because the Baehr decision would be appealed to the Hawaii Supreme Court, they argued that the legalization of marriages between persons of the same sex in Hawaii was not going to occur for more than a year. See id. Therefore, there was no need to rush DOMA through the legislative process without more analysis. See id. Second, the argument that DOMA was necessary to allow states to reject out-of-state marriages of same-sex couples was unfounded. See id. at 37. The dissenters argued that there is not absolute certainty as to what a state's obligations are under the Full Faith and Credit Clause with respect to out-of-state marriages. See id. They stated, "the prevailing view today is that states can, by adopting their own contrary policies, deny recognition to marriages of a type of which they disapprove, and it is incontestable that states have in fact done this on policy grounds in the past." Id.

168. See H.R. Rep. No. 104-664, at 40-41 (1996). The dissenters argued that the Full Faith and Credit Clause has rarely been used by Congress, and none of those statutes limited full faith and credit. See id. at 41. Rather, their purpose was to reinforce or expand the full faith and credit given to states' court judgments. See id. See infra notes 305-17 and accompanying text for a discussion on the laws that have been passed by Congress under the Full Faith and Credit Clause.

169. See H.R. Rep. No. 104-664, at 42 (1996). Contrary to the notion that the purpose of DOMA is to protect state sovereignty, the dissenters argued that it actually undercuts states' rights. See id. The dissenters argued that section three of DOMA infringes on states' rights because "it represents for the first time in our history a Congressional effort . . . to deny states full discretion over their own marriage laws." Id. DOMA says that if a state decides to recognize marriages of same-sex couples, those marriages will not be recognized by the federal government "whether such decision is made by a State Supreme Court, a referendum of the state's population, a vote of the state's legislature, or some combination thereof." Id. Therefore, DOMA "is exactly the opposite of a states' rights measure." Id.

170. See H.R. Rep. No. 104-664, at 42 (1996). The dissenters argued, "[t]he notion that allowing two people who are in love to become legally responsible to and for each other threatens heterosexual marriage is without factual basis." Id. In fact, it was argued that DOMA had nothing to do with protecting marriage. See 142 Cong. Rec. H7490 (daily ed. July 12, 1996) (statement of Rep. McKinney). Congresswoman McKinney of Georgia stated, "This bill doesn't prevent a single divorce, a single case of spousal abuse, or protect the institution of marriage." Id. Senator Boxer argued, "with all the things we could be doing that would really matter to families, we are taking up this so-called Defense of Marriage Act, which . . . has nothing to do . . . with helping married couples cope with the stress on their marriages." 142 Cong. Rec. S10065 (daily ed. Sept. 9, 1996).

171. See 142 Cong. Rec. S10065 (daily ed. Sept. 9, 1996) (statement of Sen. Boxer). Senator Boxer of California stated that, in her opinion, DOMA was "an election-year ploy to get Senate and House members to cast a tough vote." Id. (statement of Sen. Boxer). Congressman Moakley of Massachusetts argued that DOMA "appears to be a political attempt to sling arrows at President Clinton." 142 Cong. Rec. H7272 (daily ed. July 11, 1996) (statement of Rep. Moakley).

172. See 142 Cong. Rec. H7492 (daily ed. July 12, 1996) (statement of Rep. Skaggs). Congressman Skaggs of Colorado argued that proponents of DOMA "seem primarily moved to demonstrate a gratuitous disrespect for some citizens based on their sexual orientation." Id. (statement of Rep. Skaggs). Congressman Meehan of Massachusetts argued, "we devalue [gay and lesbian] commitment[s] without compelling reasons but simply because we don't like their choice of partners. . . . [DOMA] is an attack on gay men and women." Id. at H7486 (statement of Rep. Meehan).

173. 116 S. Ct. 1620 (1996).

174. See supra note 24.

175. See Colo. Const. art. II, § 30b, which provides:

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.Id.

176. See Romer, 116 S. Ct. at 1629. Justice Kennedy wrote the majority opinion, and was joined by Justices Stevens, O'Conner, Souter, Ginsburg, and Breyer. See id. at 1623. Justice Scalia wrote a dissenting opinion, and was joined by Chief Justice Rehnquist and Justice Thomas. See id. at 1629.

177. Id. at 1623. Amendment 2 "altered the jurisdiction of all governmental entities in Colorado by barring all branches and all levels of government from protecting gay people from any form of public or private discrimination in any context." Respondents' Brief at 7, Romer v. Evans, 116 S. Ct. 1620 (1996) (No. 94-1039).

178. See Romer, 116 S. Ct. at 1623. Amendment 2 was adopted in 1992 at the general election by a vote of 813,966 to 710,151 (53.4% to 46.6%). Evans v. Romer, 882 P.2d 1335, 1338 (Colo. 1994).

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

180. See id.

181. See id. The campaign for Amendment 2 was initiated by Colorado for Family Values (CFV) in order to "`close the lid on the entire issue of [civil rights for gay people] . . . in Colorado.'" Respondents' Brief at 7, Romer (No. 94-1039) (alteration in original) (quoting the record). During the campaign, CFV relied on two arguments to persuade Colorado voters to pass Amendment 2. See id. First, CFV depicted gays and lesbians as "`morally depraved' persons who undermine `traditional family values and structures.'" Id. (quoting the record). Their campaign brochure alleged that the gay and lesbian lifestyle included child molestation. See id. Second, CFV asserted that anti-discrimination laws granted "special rights" to gays and lesbians that were not accorded to other Colorado residents. See id. at 7-8.

182. Romer, 116 S. Ct. at 1624.

183. See id.

184. See Evans v. Romer, 854 P.2d 1270, 1282, 1285 (Colo. 1993). The court held that "the Equal Protection Clause . . . protects the fundamental right to participate equally in the political process, and that any legislation or state constitutional amendment which infringes on this right by `fencing out' an independently identifiable class of persons must be subject to strict judicial scrutiny." Id. at 1282. The court held further that "the right to participate equally in the political process is clearly affected by Amendment 2, because it bars gay men, lesbians, and bisexuals from having an effective voice in governmental affairs." Id. at 1285.

185. See Romer, 116 S. Ct. at 1624.

186. See Evans v. Romer, 882 P.2d 1335, 1350 (Colo. 1994). The court held that Colorado "failed to establish that Amendment 2 is necessary to serve any compelling governmental interest in a narrowly tailored way." Id. At trial, Colorado had offered the following government interests:

(1) deterring factionalism; (2) preserving the integrity of the state's political functions; (3) preserving the ability of the state to remedy discrimination against suspect classes; (4) preventing the government from interfering with personal, familial, and religious privacy; (5) preventing government from subsidizing the political objectives of a special interest group; and (6) promoting the physical and psychological well-being of Colorado children.Id. at 1339-40.

187. See Romer, 116 S. Ct. at 1624.

188. See id.

189. Id. The state asserted that all civil rights laws accord "special privileges" because they infringe upon an owner's property rights. Petitioners' Brief at 7, Romer v. Evans, 116 S. Ct. 1620 (1996) (No. 94-1039). The state argued further, "`if you redefine a class that has a right to limit [a property owner's] discretion in disposal and use, you have transferred the property right from the prior title holder to this class. [This transfer] constitutes a very large privilege.'" Id. (quoting the Record). But see Respondents' Brief at 8, Romer (No. 94-1039) (noting that an officer of CFV, the group that proposed Amendment 2, conceded that "the phrase `special rights' was a `meaningless term' designed as a campaign slogan rather than an accurate description of Amendment 2's legal effects") (quoting the record).

190. Romer, 116 S. Ct. at 1625 (quoting Evans v. Romer, 854 P.2d 1270, 1284-85 & n.26 (Colo. 1993)).

191. Id.

192. Id.

193. Id. at 1627. The respondents argued that "Amendment 2 prohibits gay people from seeking or obtaining basic protections from discrimination that state and local laws routinely provide to all other persons in Colorado." Respondents' Brief at 12, Romer (No. 94-1039). For example, in the insurance industry, Colorado state law prohibits "`unfair discrimination' against any insured on any basis." Id. at 10 (quoting Colo. Rev. Stat. § 10-3-1104(1)(f)).

194. Romer, 116 S. Ct. at 1627.

195. See id. at 1627 ("If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. Amendment 2 fails, indeed defies, even this conventional inquiry.").

196. Id.

197. Id.

198. Id. at 1628.

199. Id. (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).

200. See Romer, 116 S. Ct. at 1628. ("A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense." (emphasis added)). See also Brief of Laurence H. Tribe et al. as Amici Curiae in Support of Respondents at 1, Romer v. Evans, 116 S. Ct. 1620 (1996) (No. 94-1039) (arguing that Amendment 2 was a per se violation of the Equal Protection Clause because "[s]electively decreeing some `person or class of persons' . . . ineligible for legal protection from mistreatment . . . is every bit as offensive on its face to the principle of equality before the law").

201. Romer, 116 S. Ct. at 1628-29.

202. Id. at 1629.

203. Id.

204. Id. at 1628 (quoting Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).

205. The Kulturkampf was "[t]he struggle (1872-87) between the Roman Catholic Church and the German government for control over civil marriage and school and church appointments." The American Heritage Dictionary 728 (1971). The word is used to represent a "conflict between secular and religious authorities." Id.

206. Romer, 116 S. Ct. at 1629 (Scalia, J., dissenting).

207. Id. (Scalia, J., dissenting).

208. 478 U.S. 186 (1986).

209. See Romer, 116 S. Ct. at 1629 (Scalia, J., dissenting). In Bowers v. Hardwick, the Court stated that "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable" provided a rational basis for Georgia's sodomy law. Bowers, 478 U.S. at 196.

210. See Bowers, 478 U.S. at 190-91.

211. Romer, 116 S. Ct. at 1629 (Scalia, J., dissenting).

212. Id. at 1631 (Scalia, J., dissenting).

213. See id. (Scalia, J., dissenting) (citing Bowers v. Hardwick, 478 U.S. 186 (1986)).

214. Id. (Scalia, J., dissenting).

215. See id. at 1629-31 (Scalia, J., dissenting).

216. Id. at 1630 (Scalia, J., dissenting). Scalia asserted that Amendment 2 "would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service." Id.

217. Romer v. Evans, 116 S. Ct. 1620, 1627 (1996).

218. Id. at 1628.

219. See Defense of Marriage Act, Pub. L. No. 104-199, § 3, 110 Stat. 2419 (1996) (codified as amended at 1 U.S.C. §7). This section defines the meaning of the words "marriage" and "spouse" with regard to federal law. See id. "Marriage" is defined as "a legal union between one man and one woman as husband and wife, and "spouse" refers only to a person of the opposite sex who is a husband or a wife." Id.

220. See id. § 2 (codified as 28 U.S.C. §1738C) (providing that no state "shall be required to give effect" to a legal marriage "between persons of the same sex" performed in another state).

221. See Sunstein, Senate Hearing, supra note 24, at 47-48.

222. Id. at 47. Professor Sunstein explained further that "[DOMA] makes a distinction between same-sex marriages and all other marriages; it says nothing about incestuous marriages, bigamous marriages, marriages among minors, or polygamous marriages." Id. at 47-48.

223. Romer, 116 S. Ct. at 1625.

224. Id. The Court illustrated this point by referring to Colorado laws that prohibit discrimination in the private and public spheres. See id. at 1625-26. The Court cited ordinances in Boulder and Denver that prohibit discrimination by providers of public accommodations. See id. at 1625. The Boulder ordinance defines "public accommodation" by including "`any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind.'" Id. at 1625 (quoting Boulder Rev. Code § 12-1-1(j) (1987)). The Court stated that a Denver ordinance was equally broad because it applies to "hotels, restaurants, hospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and `shops and stores dealing with goods or services of any kind.'" Id. (quoting Denver Rev. Mun. Code art. IV, § 28-92). Amendment 2 "nullifie[d] specific legal protections for [gays and lesbians] in all transactions in housing, sale of real estate, insurance, health and welfare services, private education and employment." Id. at 1626. Amendment 2 affected the public sphere as well because it "repeal[ed] and [prohibited] all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government." Id.

225. See infra notes 233-91 and accompanying text; see generally David L. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L. Rev. 447 (1996) (providing a comprehensive examination of the rights and benefits that are attached to marriage under state and federal law and how these laws would apply to the lives of gays and lesbians in long-term relationships).

226. See supra note 219.

227. See infra notes 235-46 and accompanying text.

228. See infra notes 248-61 and accompanying text.

229. See supra note 220.

230. See Romer, 116 S. Ct. at 1623. The Court stressed how this prohibition significantly disabled gays and lesbians. The Court stated, "[h]omosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution . . . ." Id. at 1627.

231. See supra notes 138, 143.

232. See supra note 143.

233. See infra notes 234-46 and accompanying text.

234. See GAO Report, supra note 133, at 2.

235. See, e.g., 26 U.S.C. § 6013 (1994) (providing that married couples may file joint tax returns); Adam Chase, Tax Planning for Same-Sex Couples, 72 Denv. U. L. Rev. 359, 361 n.9 (1995) ("On a joint return, the taxpayers report their combined income and deduct their combined allowable expenses, thus providing beneficial pooling of disparate income earners."). But see Jennifer Gerarda Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage, 68 S. Cal. L. Rev. 745, 782 (explaining that "for some couples marriage may increase rather than decrease their aggregate income tax liability" (citations omitted)). For a discussion on the tax benefit and tax penalty see infra notes 495-96 and accompanying text.

In addition to filing joint returns, married opposite-sex couples can benefit from other tax advantages such as, "beneficial adjustments for gift taxes paid by a decedent spouse, a full marital deduction for transfers to a spouse upon death, tax-free inter-spousal transfers, and special estate tax treatment for joint interests of husband and wife." Chase, supra at 361-62 (footnotes omitted). See also Patricia A. Cain, Same-Sex Couples and the Federal Tax Laws, 1 Law & Sexuality 97, 99-102 (1991) (stating that none of the tax benefits accorded to married opposite-sex couples are available to same-sex couples).

236. See GAO Report, supra note 133, at 14-15. The report explains that federal bankruptcy law "expressly permits spouses to file jointly for bankruptcy protection. This may benefit both the debtors and their creditors: the married couple pays only one filing fee and creditors file only one claim." Id. at 14. The report also states that "[a] former spouse of the debtor making a claim in a bankruptcy proceeding for payments pursuant to a divorce decree or separation agreement is given a higher priority than some other creditors." Id.

Under the National Housing Act,

[b]anks often use a so-called due-on-sale clause in mortgage agreements that permits them to declare the loan payable in full if the borrower sells the property without their consent. The Act prohibits use of the due-on-sale clause in case of transfers of residential property from one spouse to another.Id. The Consumer Protection Act governs some components of garnishment of wages, which is defined by the report as "a legal process whereby a creditor collects a debt by having the debtor's employer pay part of the debtor's wages directly to the creditor." Id. at 15. Under the Act, the percentage of an individual's earnings that can be withheld through garnishment is higher if the garnishment is for spousal support (60%) compared to the norm (25%). See id. The report also reveals that "The Copyright Act gives renewal rights and termination rights, in some circumstances, to the widow or widower of the creator of the copyrighted work." Id. Under the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993, the federal government will finance "handlers" of fresh cut flowers and greens whose sales exceed $750,000. See id. "Sales by one spouse are attributed to the other" when determining if the "handler" meets the $750,000 requirement. Id.

237. See, e.g., 42 U.S.C. § 402(b)(1) (1994) (providing that "[t]he wife . . . and every divorced wife . . . of an individual entitled to old-age or disability insurance benefits . . . shall . . . be entitled to a wife's insurance benefit"); 42 U.S.C. § 402(c)(1) (1994) (providing that "[t]he husband . . . and every divorced husband . . . of an individual entitled to old-age or disability insurance benefits . . . shall . . . be entitled to a husband's insurance benefit"); 42 U.S.C. § 402(e)(1) (1994) (providing that "a widow . . . and every surviving divorced wife . . . of an individual who died a fully insured individual . . . if such widow has attained age 60, or has attained age 50 but has not attained age 60 and is under a disability . . . shall be entitled to a widow's insurance benefit"); 42 U.S.C. § 402 (g)(1) (1994) (providing insurance benefits to a surviving spouse and surviving ex-spouses of an individual who died insured); 42 U.S.C. § 426 (1994) (providing Medicare benefits to spouses of insured individuals); see GAO Report, supra note 133, at 6. The GAO report reveals that the federal child support enforcement program requires that if a person is receiving Medicaid or Aid to Families with Dependant Children (AFDC) (programs providing medical and financial assistance to low-income persons), and if an absent parent is required to pay spousal support to the person receiving Medicaid or AFDC, then the state "must help enforce the support obligation." Id. Additionally, the spouses of Medicaid recipients are eligible for medical assistance. See id. at 7.

238. See GAO Report, supra note 133, at 7 (reporting that the National Affordable Housing program provides assistance to "first-time homebuyers," defined as "an individual `and his or her spouse' who have not owned a home during the preceding 3 years").

239. See, e.g., 38 U.S.C. § 1115 (1994) (providing additional compensation to a disabled veteran with a dependent spouse); 38 U.S.C. § 1310(a) (1994) (providing that "[w]hen any veteran dies . . . from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation to such veteran's surviving spouse"); 38 U.S.C. § 1521(c) (1994) (providing that a veteran of a period of war who is married and "living with or reasonably contributing to the support of" his or her spouse shall receive an increase in his or her pension); 38 U.S.C. § 1541(a) (1994) (providing that "[t]he Secretary shall pay to the surviving spouse of each veteran of a period of war . . . [a] pension"); 38 U.S.C. § 3482 (1994) (providing an increase in a veteran's educational assistance allowance for a veteran with a dependent spouse).

240. See, e.g., 5 U.S.C. § 8341(b)(1) (1994) (providing that "if an employee or Member dies after having retired . . . and is survived by a widow or widower, the widow or widower is entitled to an annuity"); see GAO Report, supra note 133, at 10. The report states that there are several laws governing federal employees and officers that benefit married couples. See id. The report states that married opposite-sex couples benefit from the following:

a law establishing health benefits or survivor benefits for spouses; a law prescribing the order of precedence in payment of financial paychecks and life insurance benefits of employees or officers who die without having designated a beneficiary; and a law determining the rights of current or former spouses to a retirement annuity after the death of an employee.

In addition, under provisions for reimbursement of employees' expenses in connection with a government ordered relocation, spouses are eligible for per diem allowances or subsistence payments. Federal and civil service employees are entitled to unpaid leave in order to care for a spouse with a serious health problem, and an employee disabled by work-related injuries receives augmented compensation if he or she is married.Id.

241. GAO Report, supra note 133, at 13 (explaining that federal law gives a surviving spouse of a Native American ("who is neither [Native American] nor a member of the deceased spouse's tribe") the right "to elect a life estate in property that he or she is occupying at the time of death of the other spouse").

242. See, e.g., 8 U.S.C. § 1151(a)(2)(A)(i) (1994) (providing that an alien may be lawfully admitted to the United States for permanent residence if such alien is the spouse of a citizen of the United States); 8 U.S.C. §§ 1151(a) & (c), 1153(a)(2) (1994) (providing that an alien spouse of an alien lawfully admitted to the United States for permanent residence may be admitted to the United States for permanent residence); 8 U.S.C. § 1184(d) (1994) (providing that a visa will be issued to the fiancee or fiance of a citizen after a petition has been filed by the citizen and approved by the Attorney General).

243. See 29 U.S.C. § 2612(a)(C) (1994) (providing that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [i]n order to care for the spouse . . . of the employee, if such spouse . . . has a serious health condition"); GAO Report, supra note 133, at 11-12. In addition to sick leave to care for one's spouse, federal law provides for a "continuation of employer-sponsored health benefits after events like death or divorce of the employee." Id. at 11. Federal law also provides benefits in particular areas of employment. See id. The report states that "[t]he spouse of a coal miner who dies of black lung disease is entitled to benefits [and] [t]he surviving spouse of a public safety officer killed in the line of duty is eligible for a death benefit of up to $100,000." Id.

In addition, under the Railroad Retirement Act, spouses of retired railroad employees "may be eligible for annuities and lump sum benefits." Id. at 12. And, under a federal workers' compensation law, spouses of longshore and harbor workers are eligible for survivor benefits. See id. The report also reveals that The Employee Retirement Income Security Act "prohibits an employee from changing beneficiaries in a retirement plan or from waiving the joint and survivor annuity form of the retirement benefit, without the written consent of his or her spouse." Id. at 11-12.

244. See GAO Report, supra note 133, at 16-18 (discussing federal laws regarding the following: spouses as victims; spouses as perpetrators; domestic violence; and crime prevention).

245. See id. at 18-19. Under federal law, "[m]arried couples may consolidate their separate student loans into one[,]" and "agricultural loans for real estate, operating expenses, and emergencies may be made to `family farms,' defined as those farms in which a majority interest is held by individuals related by blood or marriage." Id. at 18, 19. In addition, "[e]ligibility for assistance in borrowing for housing extends to the surviving spouses of veterans who die from a service-connected disability, and to the spouses of certain veterans who, for more than 90 days, have been missing in action, captured by hostile forces, or forcibly detained by a foreign government." Id. at 19.

246. See id. at 19 (reporting that "[f]ederal law gives . . . rights to spouses in connection with a variety of transactions involving federal lands and other federal property").

247. See infra notes 248-61 and accompanying text.

248. See, e.g., Mass. Gen. Laws ch. 190, § 1 (1996) (providing for the distribution of property not disposed of by will to the decedent's spouse).

249. See, e.g., Mass. Gen. Laws ch. 229, § 1 (1996) (providing that "[i]f the life of a person is lost by defect . . . in or upon a way, causeway or bridge, the county, city, [or] town . . . [will] be liable in damages . . . to the use of" the surviving husband, wife or children); Id. § 2B (providing that "if, as the result of the negligence of an employer . . . an employee is instantly killed . . . the surviving wife or husband of the deceased . . . shall have a right of action for damages against the employer"); Id. § 2. Section two of Chapter 229 states:

[a] person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person . . . shall be liable in damages in the amount of: (1) the fair monetary value of the decedent to [the surviving wife, husband or children] including . . . compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the [surviving wife, husband or children]; (2) the reasonable funeral and burial expenses of the decedent; [and] (3) punitive damages [in certain cases].Id.

250. See, e.g., Mass. Gen. Laws ch. 208, § 34 (1996). Section 34 of Chapter 208 provides:

[u]pon divorce . . . the court of the commonwealth . . . may make a judgment to pay alimony to the other. In addition or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or part of the estate of the other, including . . . all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include . . . retirement benefits, military retirement benefits . . . pension, profit-sharing, annuity, deferred compensation and insurance. . . . The court may also consider the contribution of each of the parties in acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. . . .Id.

251. See Ettelbrick, supra note 126, at 126 (stating that "[h]ealthcare benefits, paid bereavement leave, parenting leave, sick leave, discounts or tuition waivers and death benefits are among the many employer-provided benefits extended to employees for the benefit of a spouse and children, and are among the benefits sought by employees for their partners" (footnotes omitted)); The Los Angeles County Bar Association Report On Sexual Orientation Bias, 4 S. Cal. Rev. L. & Women's Stud. 305, 331-32 (1995) ("According to the Attorney Survey and Employer Survey results . . . most gay attorneys with same-sex domestic partners are not compensated the same as married heterosexual attorneys with respect to employee benefits. Even at firms with policies against sexual orientation discrimination, such benefits disparities appear to be common." (footnotes omitted)).

252. See Developments in the Law -- Sexual Orientation and the Law, 102 Harv. L. Rev. 1584, 1618 (1989) (explaining that "[g]enerally . . . courts have not recognized the right of a cohabitant to receive workers' compensation benefits unless he or she is the employee's legal spouse") [hereinafter Sexual Orientation and the Law].

253. See Ettelbrick, supra note 126, at 127 (explaining that many businesses and organizations provide benefits to traditional families, such as "family memberships to museums and health clubs, frequent flier awards and discounted family travel and home insurance awards").

254. See Doe v. Sparks, 733 F. Supp. 227, 235 (W.D. Pa. 1990) (declaring that a county prison's visitation policy, which allowed visitation between unmarried heterosexual inmates and their significant others, but prohibited visitation between homosexual inmates and their significant others, was invalid); Brown, supra note 235, at 784 (noting that "[h]ospital visitation rights are typically granted only to traditional family members") (footnote omitted).

255. See Chambers, supra note 225, at 455 (explaining that "[w]hen such incapacity arises for an unmarried person, state laws designate a parent or an offspring or some other blood relation as decisionmaker, but, for persons who are married, they typically turn first to the person's spouse" (footnote omitted)); Brown, supra note 235, at 784 (noting that the "[a]bility to authorize emergency medical treatment is . . . usually limited to traditional families" (footnote omitted)).

256. See Brown, supra note 235, at 784 (noting that when a married person dies, the "surviving spouse retains certain powers, including . . . the right to make decisions about cremation, burial, and funeral arrangements" (footnote omitted)).

257. See Chambers, supra note 225, at 455 (explaining that a guardian "makes not only medical decisions but other decisions about residence, care, and financial matters. . . . [and guardian statutes] commonly provide first for the appointment of a blood relative for a single person and a spouse for a married person"). See also In re Guardianship of Sharen Kowalski, 478 N.W.2d 790 (Minn. Ct. App. 1991). In this case, Karen Thompson and Sharen Kowalski had been living together as a couple for four years when, on November 13, 1983, Sharen was in a car accident and suffered severe brain injuries. See id. at 791. After the accident, Sharen's father, who was named guardian at the time, had obtained court approval to terminate Karen's visitation rights. See id. Karen fought Sharen's family for visitation and guardianship for eight years until December 10, 1991, when the Court of Appeals of Minnesota appointed Karen as Sharen's guardian. See id. at 791-92, 797.

258. See In re Adoption of T.K.J. & K.A.K., 931 P.2d 488 (Colo. Ct. App. 1996) (denying a petition by lesbian partners to adopt each other's biological child under the rationale that the statute only allows step-parent adoptions (when the adopting parent is married to the biological parent), and adoptions that terminate the biological parents' rights).

259. See Chambers, supra note 225, at 477 (explaining that "[i]n community property states, each divorcing spouse is entitled to one-half of the property acquired during the marriage. . . . [and in other states] all of the property "acquired during the marriage" is divided "in an equitable manner").

260. See, e.g., Mass. Gen. Laws ch. 233, § 20 (1996) (providing that "neither husband nor wife shall testify as to private conversations with the other . . . [and] neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other").

261. See Sexual Orientation and the Law, supra note 252, at 1613. The editors state:

Many jurisdictions have enacted exclusionary zoning ordinances that restrict the sale and rental of housing to single families. A typical ordinance defines "family" as biologically or legally related persons who are organized under a single head and/or function as a single household. In general, courts upholding such ordinances have been unwilling to extend family status to unmarried heterosexual couples.Id. (footnotes omitted). In addition to zoning ordinances, surviving spouses have successorship rights to leasehold property. See Brown, supra note 235, at 784. Same-sex partners have had to sue in order to secure this right. See id. (citing Braschi v. Stahl Assocs., 543 N.E.2d 49 (N.Y. 1989) (extending the term "family" of New York City's rent and eviction regulation to a deceased tenant's same-sex partner, which gave the partner the right to remain in the apartment that the couple had shared)).

262. See infra notes 263-79 and accompanying text.

263. See Brown, supra note 235, at 785 (noting that "[g]ay men and lesbians could draft wills to ensure that their partners would be provided for upon their deaths, and they could execute powers of attorney assuring that their partners would have some say in health care decisions").

264. See id. Brown explains that "[c]ouples could also contract ex ante for division of property if their relationships should end, and thus gain some of the benefits of the rules that pertain to divorce." Id. (footnote omitted).

265. See Peter S. Canellos, Security a Key Gay-Marriage Issue, The Boston Globe, Dec. 19, 1996, at B1, B4 (noting that a local lawyer "says that under estate tax laws, unequal treatment of gay couples becomes more extreme among wealthy people. Married couples can inherit from each other tax-free. But for nonmarried heirs, estate taxes gobble up as much as 55 percent of every dollar above $600,000").

266. See Sexual Orientation and the Law, supra note 252, at 1623 n.137 (1989) (explaining that "[o]ften . . . relatives have successfully sought to invalidate these wills on grounds of undue influence").

267. See Chambers, supra note 225, at 457 (footnote omitted).

268. See Brad Bonhall, Partners for Life: Gays in O.C. Are Increasingly Confirming Their Unions Before Family and Friends, L.A. Times, Feb. 13, 1994, at E1, E3 (explaining that it has been estimated that such contracts cover "only 60% of what is covered in a heterosexual marriage" and "cannot guarantee the same protections in areas such as child-custody, pension plans, health coverage, and Social Security benefits").

269. See infra notes 270-73 and accompanying text.

270. Raymond C. O'Brien, Domestic Partnership: Recognition and Responsibility, 32 San Diego L. Rev. 163, 163 (1995).

271. See Margaret Carlson, The Marrying Kind, Time, Sept. 16, 1996, at 26.

272. See Jane Gross, After a Ruling, Hawaii Weighs Gay Marriages, N.Y. Times, Apr. 25, 1994, at A1, B8.

273. O'Brien, supra note 270, at 166 (footnote omitted). The benefits conferred by municipal domestic partnership laws can differ considerably. See William B. Rubenstein, We Are Family: A Reflection on the Search for Legal Recognition of Lesbian and Gay Relationships, 8 J.L. & Pol. 89, 94 (1991). For example, while the San Francisco domestic partnership law extends many benefits, including health insurance, to the domestic partners of city employees, the New York City domestic partnership law does not include health insurance benefits. See id. The New York City law, created by the former Mayor David Dinkins through an executive order, allows couples to register as domestic partners and receive the following: (1) the same visitation rights as married couples in city hospitals and jails, (2) the same standing as married couples in city housing in terms of qualifying for housing and inheriting a lease, and (3) unpaid leave for city employees to care for a newborn child. See Alan Finder, Rights of `Domestic Partners' Broadened by Dinkins Order, N.Y. Times, Jan. 8, 1993, at A1.

274. See Ettelbrick, supra note 126, at 143-45 (explaining that domestic partnership laws and policies have benefitted the gay and lesbian community by providing equal compensation for equal work by some employers, by increasing the visibility of gay and lesbian relationships, and by expanding the definition of "family").

275. See supra notes 271-72 and accompanying text.

276. See Mark Strasser, Domestic Relations Jurisprudence and the Great, Slumbering Baehr: On Definitional Preclusion, Equal Protection, and Fundamental Interests, 64 Fordham L. Rev. 921, 982 (1995) (stating that "domestic partnerships . . . do not give individuals all of the rights they would have if they were married"); infra note 279 and accompanying text.

277. See Carlson, supra note 271, at 26.

278. See supra note 273.

279. Rubenstein, supra note 273, at 93-94; see also Chase, supra note 235, at 378 (stating that "domestic partnership legislation has been restricted to the municipal level").

280. See McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976). In McConnell, the United States Court of Appeals for the Eighth Circuit, affirmed the district court's dismissal of a veteran's complaint for increased educational benefits. See id. at 55. The veteran sued on the ground that his same-sex partner, with whom the veteran had engaged in a ceremonial marriage, was his dependent spouse. See id. See also Hinman v. Dep't of Personnel Admin., 167 Cal. App. 3d 516, 520 (1985) (holding that the "denial of dental care benefits to partners of homosexual state employees does not violate the equal protection clause of the California Constitution").

281. 883 P.2d 516 (Colo. App. 1994).

282. See id. at 519.

283. 673 F.2d 1036 (9th Cir. 1982).

284. See id. at 1038.

285. See Canellos, supra note 265, at B1.

286. See id.

287. See id.

288. See id.

289. See id.

290. See id.

291. See Canellos, supra note 265, at B1, B4; supra notes 248, 256.

292. See infra notes 293-321 and accompanying text.

293. Romer v. Evans, 116 S. Ct. 1620, 1628 (1996).

294. Id. (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).

295. See infra notes 297-317 and accompanying text.

296. See infra notes 318-21 and accompanying text.

297. U.S. Const. art. IV, § 1.

298. See supra notes 139-41 and accompanying text.

299. See infra notes 300-17 and accompanying text.

300. See Robert H. Jackson, Full Faith and Credit--The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1, 2 (1945) (providing Supreme Court Justice Jackson's explanation that the Full Faith and Credit Clause "serves to coordinate the administration of justice among several independent legal systems which exist in our Federalism"); Sunstein, Senate Hearing, supra note 24, at 45. Professor Sunstein states:

The purpose of the full faith and credit clause was unifying -- the clause was designed to help create a "United States" in which states would not compete against one another through a system in which judgments could be made part of interstate rivalry. The clause's historic function is to ensure that states will treat one another as equals rather than as competitors.Id.

301. 317 U.S. 287 (1942).

302. Id. at 295 (quoting Milwaukee County v. White Co., 296 U.S. 268, 276-77 (1935)).

303. See Sunstein, Senate Hearing, supra note 24, at 46 (stating that "Congress has used its power under the full faith and credit clause relatively rarely, and when it has done so it has attempted to ensure, not to undermine, the application of one state's law to other states"); infra notes 305-17 and accompanying text.

304. See infra notes 305-12 and accompanying text.

305. See Gina Marie Stevens, Interstate Marriage Recognition And The Defense of Marriage Act, Cong. Res. Serv. Rep. for Congress, No. 96-529 A, June 7, 1996, at 9 [hereinafter CRS Report].

306. See 28 U.S.C. § 1738 (1994).

307. See CRS Report, supra note 305, at 9.

308. See 28 U.S.C. § 1739 (1994).

309. See id. § 1738A.

310. See id. § 1738A(a).

311. See id. § 1738B.

312. See id. § 1738B(a).

313. See 142 Cong. Rec. H7274 (daily ed. July 11, 1996) (statement of Rep. Campbell). Congressman Campbell of California argued that the Parental Kidnapping Act of 1980 and the Full Faith and Credit for Child Support Orders Act are examples of when Congress has used its "constitutional authority to establish exceptions to the full faith and credit clause". Id. Under the PKPA, a state can modify another state's child custody determination only when the former state has jurisdiction to modify the determination, and the latter state no longer has jurisdiction, or has declined to exercise jurisdiction. See 28 U.S.C. § 1738A(f) (1994). Under the Full Faith and Credit for Child Support Orders Act, a state can modify a child support order made in another state only when the former state has jurisdiction to make the modification and the latter state no longer has jurisdiction. See 28 U.S.C. § 1738B(e) (1994).

314. See Parental Kidnapping Prevention Act of 1980, Pub. L. No. 96-611, § 7(c)(3), 94 Stat. 3568, 3569 (1980) (stating that one of the purposes of the Act is to "facilitate the enforcement of custody and visitation decrees of sister States"); Full Faith and Credit for Child Support Orders Act, Pub. L. No. 103-383, § 2(c)(1), 108 Stat. 4063, 4064 (1994) (stating that one of the purposes of the Act is to "facilitate the enforcement of child support orders among states").

315. See CRS Report, supra note 305, at 10.

316. Id.; see also 28 U.S.C. § 1738A(a) (1994) (providing that "every State shall enforce . . . and shall not modify except as provided in subsection (f) of this section, any child custody determination"); 28 U.S.C. § 1738B(a) (1994) (providing that the general rule is that "each State (1) shall enforce . . . a child support order . . . of another State; and (2) shall not seek to make a modification of such an order except in accordance with subsection (e)"); Sunstein, Senate Hearing, supra note 24, at 46 (explaining that both the PKPA and the Full Faith and Credit for Child Support Orders Act "have mild `negative' dimensions insofar as they prescribe the requirements for full faith and credit").

317. Id.

318. See supra note 143.

319. See Maynard v. Hill, 125 U.S. 190, 205 (1888) (holding that marriage is a social relation subject to state regulation).

320. See H.R. Rep. No. 104-664, at 10 (1996). Supporters of DOMA acknowledged that "federal law has simply accepted state law definitions of who is married. . . ." Id. Congress members opposed to DOMA argued that "the federal government has always relied on the states' definition of marriage for federal purposes" and "[t]he federal government has no history in determining the legal status of relationships." Id. at 43.

While Congress was considering DOMA, Professor Lynn D. Wardle prepared a written statement for Senate Committee on the Judiciary, in which he argued that Congress has not always relied on state definitions of marriage with regard to immigration law. See Wardle, supra note 24, at 38. However, even under immigration law, Congress will first determine whether the marriage is valid under state law. See Adams v. Howerton, 673 F.2d 1036, 1038 (1982). After this determination is made, Congress will then consider the marriage under federal definitions and requirements to decide if the marriage is valid under immigration law. See id. at 1039-40. Therefore, Congress is still relying on the States' definition of marriage under immigration law. See id. at 1038. Furthermore, this example is only one exception to the hundreds of other federal laws in which Congress relies on the States' definitions of marriage. See H.R. Rep. No. 104-664, at 10 (1996); see also GAO Report, supra note 133, at 2 (stating that there are 1049 federal laws in which marriage is a factor).

321. 38 U.S.C. § 103(c) (1994).

322. See Romer v. Evans, 116 S. Ct. 1620, 1627 (1996).

323. Id.

324. Id. at 1628 (quoting Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).

325. H.R. Rep. No. 104-664, at 12 (1996).

326. See infra Part III.B.1-5.

327. See infra notes 516-29 and accompanying text.

328. Id.

329. See id. at 12-13. The Report states that "[w]e know it is not the mere presence of love that explains marriage," rather, the primary purpose of marriage is procreation. Id. at 13. The Report states further: "Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship." Id. at 14.

330. See infra notes 331-46 and accompanying text.

331. See Strasser, supra note 276, at 955 (explaining that "there is no requirement that married couples be able or willing to have children").

332. See Baehr v. Miike, Civ. No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996) (finding that "there are . . . families in Hawaii, and elsewhere, which do not have children as family members"); Lenore J. Weitzman, Legal Regulation of Marriage: Tradition and Change, 62 Cal. L. Rev. 1169, 1214 (1974) (explaining that a "significant challenge to the pronatalist assumption of present legal marriage is provided by young couples who have decided not to have children"); see also Notable Couples Without Children, Gay and Lesbian Advocates and Defenders (G.L.A.D.) (Boston, MA) (revealing that George and Martha Washington, James and Dolly Madison, Albert and Elsa Einstein, Dr. and Mrs. Seuss, and the Duke and Duchess of Windsor did not have children as a result of their marriages).

333. Weitzman, supra note 332, at 1214.

334. Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 2.1, at 26 (2d ed. 1988).

335. Id. at 25.

336. 381 U.S. 479 (1965).

337. See id. at 484-86.

338. 405 U.S. 438 (1972).

339. See id. at 453.

340. Id.

341. 410 U.S. 113 (1972).

342. See id. at 152-54.

343. See Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 275-76 (1994) (arguing that "[i]t is well settled that the state may not compel procreation or forbid nonprocreative sex") (citing Roe v. Wade, 410 U.S. 113, 152-54 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U.S. 479, 484-86 (1978)); Sexual Orientation and the Law, supra note 252, at 1608 (1989) (arguing that the holdings in Griswold, Eisenstadt and Roe "clearly suggest that marriage can be understood independently of procreation").

344. See Nan D. Hunter et al., The Rights of Lesbians and Gay Men 74 (3d ed. 1992). The authors state that "[a]pproximately one-fourth of family households today consist of children maintained by a single parent, and nearly a fourth of new births are to unmarried women." Id.

345. See Mark Strasser, Family, Definitions & the Constitution, 25 Suffolk U. L. Rev. 981, 1011-12 (1991). Strasser states:

no responsible legal authority believes that the desire and willingness to have children is an essential precondition of marriage except in the context of attempting to show why there can be no homosexual marriages . . . . Theorists and jurists do not believe that the desire and ability to procreate is an essential precondition of marriage--they simply consciously or unconsciously pretend to so believe to support the ban on same-sex marriage.Id.

346. See id. at 1009-1014. Strasser argues:

Suppose, for example, that the state had a legitimate interest in refusing to give legal recognition to any couple who could not offer the possibility of the birth of children by their union. Suppose further that the state knew of various groups of individuals who could not have children but only refused marriage licenses on that ground when individuals belonging to one particular group sought those licenses. Such an unequal application of the laws could never withstand judicial scrutiny.Id. at 1014.

347. See "A Statistical Battleground": Counting Lesbians and Gay Men in the United States, in Gay & Lesbian Stats 9 (Bennett L. Singer & David Deschamps eds., 1994) [hereinafter Gay & Lesbian Stats]. The lack of definitive numbers on gays and lesbians in the United States is due to the stigma attached to homosexuality and the difficulty of defining homosexuality. See id. Because of the stigma attached to homosexuality, many gays and lesbians are reluctant to be open about their sexual orientation. See id. In addition, researchers have had difficulty defining homosexuality. See id. There has been uncertainty whether the definition should require homosexual behavior or if self-identification is sufficient regardless of behavior. See id.

348. See Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025, 1026 (1992) (citations omitted).

349. See id.

350. See id.

351. See Susan Golombock & Fiona Tasker, Children in Lesbian and Gay Families: Theories and Evidence, in Annual Review of Sex Research 73, 92-93 (1994).

352. See Gay and Lesbian Stats, supra note 347, at 36.

353. See Charlotte J. Patterson, Adoption of Minor Children by Lesbian and Gay Adults: A Social Science Perspective, 2 Duke J. Gender L. & Pol'y 191, 195 (1995). Dr. Patterson states that "[o]penly lesbian or gay adults have completed stranger adoptions in the District of Columbia, Ohio, and California." Id. Dr. Patterson explains that "[s]tranger adoptions . . . occur most often when biological parents are unwilling or unable to care for a child, and an adoptive parent offers to provide that child with a home." Id. But see Fla. Stat. Ann. § 63.042 (West 1985 & Supp. 1995) (prohibiting adoptions of minor children by homosexuals); N.H. Rev. Stat. Ann. §§ 170-B:4,170-F:6 (1994) (same).

354. See Patterson, supra note 353, at 195 ("Second parent adoptions are pursued by lesbian or gay couples who raise a child together, although only one member of the couple, the biological or legal adoptive parent, is the legal parent.").

355. See Adoption of Tammy, 619 N.E.2d 315, 321 (Mass. 1993) (affirming the Probate and Family Court's decision to allow an adoption by two lesbian partners of the biological child of one of the partners); In re Jacob and In re Dana, 660 N.E.2d 397, 401-06 (N.Y. 1995) (allowing a lesbian to adopt her partner's biological child without interfering with the biological mother's parental rights); Adoptions of B.L.V.B. and E.L.V.B., 628 A.2d 1271, 1275-76 (Vt. 1993) (allowing an adoption by two lesbian partners of the biological child of one of the partners); In re M.M.D. & B.H.M, 662 A.2d 837, 862 (D.C. 1995) (concluding that two gay-male partners may adopt the child of one of the partners); In re K.M., D.M., K.L. & M.M., 653 N.E.2d 888, 899 (Ill. App. Ct. 1995) (holding that a lesbian had standing to adopt her partner's child and another lesbian had standing to adopt her partner's children finding that the Illinois adoption statute "must be construed to give standing to the unmarried persons in these cases, regardless of sex or sexual orientation, to petition for adoption jointly"); In re Adoption by H.N.R., 666 A.2d 535, 538-41 (N.J. Super. Ct. App. Div. 1995) (allowing a lesbian to adopt her partner's biological child without interfering with the biological mother's parental rights); In re Baby Z, 1996 LEXIS 1091, at *37 (Conn. Super. Ct. April 26, 1996) (ruling that a lesbian could adopt her partner's biological child without terminating the biological mother's parental rights because the adoption would be in the child's best interest); Second-Parent Adoptions: An Information Sheet, National Center for Lesbian Rights (N.C.L.R.) (San Francisco, CA) (stating that second-parent adoptions are recognized in Alaska, the District of Columbia, Illinois, Massachusetts, New York, New Jersey, and Vermont; and such adoptions have been permitted by trial courts in California, Indiana, Michigan, Minnesota, Ohio, Pennsylvania, Rhode Island, Texas, and Washington). But see In re Adoption of T.K.J. and K.A.K., 931 P.2d 488 (Colo. App. 1996) (affirming the denial of a lesbian couple's petition to adopt each other's biological child).

356. See Golombok & Tasker, supra note 351, at 93 (1994). Golombok and Tasker explain that "[i]n a surrogacy arrangement, a woman agrees to be inseminated with the sperm of the man who will parent the child, and she then gives up all parental rights at the time of birth." Id.

357. See id.

358. H.R. Rep. No. 104-664, at 13 (1996). During the House debate over DOMA Congressman Delay of Texas stated in defense of DOMA, "[w]e saw startling statistics in 1992 that told us that Dan Quayle was right. Children do best in a family with a mom and a dad. We need to protect our social and moral foundations." 142 Cong. Rec. H7480-05, H7487 (daily ed. July 12, 1996).

359. H.R. Rep. No. 104-664, at 13 (1996).

360. Id. at 14 n.50 (quoting the Prepared Statement of Hadley Arkes, Ney Professor of Jurisprudence and American Institutions, Amherst College at 12, Subcommittee Hearing).

361. See id.

362. See infra notes 363-71 and accompanying text.

363. Charlotte J. Patterson, Summary of Research Findings, in Lesbian and Gay Parenting: A Resource For Psychologists (American Psychological Assoc., D.C.), 1995 at 1, 8.

364. G. Dorsey Green & Frederick W. Bozett, Lesbian Mothers and Gay Fathers, in Homosexuality: Implications For Public Policy 197, 213 (John C. Gonsiorek & James Weinrich eds., 1991).

365. Id.

366. See id. at 206-10.

367. Id. at 206.

368. Patterson, supra note 348, at 1025.

369. Id. at 1032.

370. Id.

371. Id. at 1033.

372. See, e.g., Hembree v. Hembree, 660 So. 2d 1342, 1345 (Ala. Civ. App. 1995) (reversing the trial court's decision to remove a child from a lesbian mother and award custody to the maternal grandparents because "[t]he trial court did not find the mother to be unfit, nor does its judgment contain any findings of fact to support such a conclusion"); S.N.E. v. R.L.B., 699 P.2d 875, 879 (Alaska 1985) (concluding that "there is no suggestion that [a mother's lesbianism] has or is likely to affect [her] child adversely" and that "it is impermissible to rely on any real or imagined social stigma attaching to [the] mother's status as a lesbian") (citing Palmore v. Sidoti, 466 U.S. 429 (1984)); In re Marriage of Birdsall, 197 Cal. App. 3d 1024, 1031 (1988) (vacating a restriction on a gay father's visitation because "[e]vidence of one parent's homosexuality, without a link to detriment to the child, is insufficient to constitute harm"); In re Hatzopoulos, 4 Fam. L. Rep. 2075, 2076 (BNA) (Colo. Juv. Ct. 1977) (awarding custody to deceased mother's lesbian partner instead of to the mother's sister and sister's husband concluding that "in the long range [the mother's partner] will offer more stability to the minor child as she has a stronger commitment to the child"); In re Pearlman, 15 Fam. L. Rep. 1355, 1356 (BNA) (Fla. Cir. Ct. 1989) (awarding custody to the deceased mother's lesbian partner and removing custody from the maternal grandparents finding that "while the court has considered [the mother's partner's] sexual preference, the court finds that there is no evidence that it has or will have any detrimental effect on the child and . . . the child's best interests will be served by being reunited with [the mother's partner]"); Teegarden v. Teegarden, 642 N.E.2d 1007, 1010 (Ind. App. 1994) (reversing the trial court's conditions imposed upon an award of custody to a lesbian mother because "the trial court found specifically that Mother's homosexuality did not have an adverse effect on [the children]"); Bezio v. Patenaude, 410 N.E.2d 1207, 1215 (Mass. 1980) (finding that a person's homosexuality is irrelevant to a determination of their parenting skills); Mary Doe v. John Doe, 452 N.E.2d 293, 296 (Mass. App. Ct. 1983) (affirming the trial court's order granting joint legal and physical custody of a child to the child's father and lesbian mother finding that "[t]here is no evidence that the wife's life-style will adversely affect [the child]"); M.P. v. S.P., 404 A.2d 1256, 1263 (N.J. Super. Ct. App. Div. 1979) (reversing the trial court's order, which granted custody of two daughters to the father because of the mother's lesbianism, concluding that "[e]xtensive evidence in the record . . . amply confirms . . . that defendant is a worthy mother. Nothing suggests that her homosexual preference in itself presents any threat of harm to her daughters"); M.A.B. v. R.B., 510 N.Y.S.2d 960, 969 (N.Y. Sup. Ct. 1986) (concluding that "it is impermissible as a matter of law to decide the question of custody on the basis of the father's sexual orientation"). But see Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) (reinstating the trial court's order awarding the maternal grandmother custody of a child based on a finding that the mother was unfit because she was a lesbian).

373. See Baehr v. Miike, Civ. No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996).

374. Id. at *18.

375. Id. at *17.

376. See id. at *18.

377. Id. See also supra Part III.A.1 for a list of the benefits of marriage.

378. 619 N.E.2d 315 (Mass. 1993).

379. See id. at 321.

380. See id. at 316.

381. See id.

382. See id. at 316. Although Francis's name appears on Tammy's birth certificate as her biological father, Tammy "was given a hyphenated surname using Susan and Helen's last names." Id. Francis supported the adoption, and surrendered his parental rights. See id. The facts also reveal that, "Francis does not participate in parenting Tammy and does not support her. His intention was to assist Helen and Susan in having a child, and he does not intend to be involved with Tammy, except as a distant relative." Id.

383. See id. Both Susan and Helen are doctors with specializations in surgery. See id. At the time of the case, "Helen maintained a private practice in general surgery at Mount Auburn Hospital and Susan, a nationally recognized expert in the field of breast cancer, was director of the Faulkner Breast Center and a surgical oncologist at the Dana Farber Cancer Institute." Id.

384. Adoption of Tammy, 619 N.E.2d at 315-16. Because the Massachusetts adoption statute terminates a natural parent's rights when a child is adopted, Susan had to join the adoption petition in order to maintain her rights. See id. at 321 (citing Mass Gen. Laws ch. 210, §§ 2, 6 (1992)).

385. Id. at 318. The Probate and Family Court allowed the adoption finding that Susan and Helen both serve as "`custodial and psychological parents of [Tammy]'" and that the adoption was in Tammy's best interests. Id. at 315-16. The Probate and Family Court judge then transferred the case and all issues of law to the Massachusetts Court of Appeals in order to secure the decision from future attacks, however, the case was transferred to the SJC under its own motion. See id. at 316.

386. Id. at 321.

387. Id.

388. Id. at 317.

389. See id. at 320. The SJC found that Tammy would benefit from the adoption because it would "enable Tammy to preserve her . . . ties to Helen in the event that Helen and Susan separate, or Susan predeceases Helen." Id. at 320. Additionally, the adoption would benefit Tammy financially because it would entitle her to the following: "to inherit from Helen's family trusts and from Helen and her family under the law of intestate succession[;] to receive [child] support from Helen . . . [;] to be eligible for coverage under Helen's health insurance policies[;] and to be eligible for social security benefits in the event of Helen's disability or death." Id. (citations omitted).

390. Adoption of Tammy, 619 N.E.2d at 317. The court also found that the Department of Social Services, after completing a home study, determined that "`the petitioners and their home are suitable for the proper rearing of this child.'" Id. Tammy's guardian ad litem, an assistant clinical professor of psychiatry at Harvard Medical School, after conducting an assessment of Tammy, concluded that "`there is every reason for [Helen] to become a legal parent to Tammy just as [Susan] is.'" Id.

391. H. R. Rep. No. 104-664, at 15 (1996).

392. See id. The Report states:

It is true, of course, that the civil act of marriage is separate from the recognition and blessing of that act by a religious institution. But the fact that there are distinct religious and civil components of marriage does not mean that the two do not intersect. Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality.Id.

393. Id. at 16 (asserting that civil marriage laws reflect a "collective moral judgment about human sexuality [which] entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality") (citing Bowers v. Hardwick, 478 U.S. 186, 196 (1986)).

394. Id. at 16. Although a majority of Americans are opposed to marriages of same-sex couples, that opinion is changing. See Graff, supra note 7, at F1. Graff explains 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.

395. H.R. Rep. No. 104-664, at 16 (1996).

396. See supra note 392 and accompanying text.

397. Koppelman, supra note 343, at 214 (stating that "civil marriage is wholly a creature of the state").

398. See supra notes 392-95 and accompanying text.

399. See Evan Wolfson, Crossing The Threshhold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-Community Critique, 21 N.Y.U. Rev. L. & Soc. Change 567, 579 n.50 (1994) ("Each religion remains free to grant or withhold its sanction of same-sex unions, wholly independently of a civil marriage.").

400. 388 U.S. 1 (1967).

401. See id. at 3, 11-12.

402. See Romer v. Evans, 116 S. Ct. 1620, 1627, 1629 (1996) (rejecting the state's rationale for Amendment 2--"respect for . . . the liberties of landlords or employers who have personal or religious objections to homosexuality"--and finding that Amendment 2 was unconstitutional because it was "inexplicable by anything but animus toward the class that it affects"); Cleburne v. Cleburne Liv. Ctr., Inc., 473 U.S. 432, 448 (1985) (finding that the denial of equal protection under the law based on "the negative attitude of the majority" was unconstitutional); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (stating that the government cannot deny one group of people equal protection under the law based on the "private biases" of another group); Dept. of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973) (concluding that the denial of equal protection under the law based on negative beliefs about hippies was unconstitutional).

403. 388 U.S. 1 (1967).

404. See id. at 3, 11-12.

405. See Loving, 388 U.S. at 2.

406. See id. at 3. In 1967, sixteen states prohibited interracial marriages. Those states were as follows: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia. See id. at 6 n.5.

407. Id. at 3 (quoting the trial court).

408. See supra note 325.

409. 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer).

410. Loving, 388 U.S. at 11-12.

411. Id. at 11.

412. See supra notes 138, 143.

413. Eskridge, supra note 12, at 1507.

414. See Loving, 388 U.S. at 11.

415. See id.

416. 116 S. Ct. 1620 (1996).

417. See id. at 1627.

418. See supra notes 391-95 and accompanying text.

419. See supra notes 391-95 and accompanying text.

420. See infra notes 422-39 and accompanying text.

421. 413 U.S. 528 (1973).

422. See id. at 532-33.

423. See id. at 529 (explaining that the challenged provision "excludes from participation in any household containing an individual who is unrelated to any other member of the household").

424. Id. at 534.

425. Id.

426. See id. at 534-35.

427. See Moreno, 413 U.S. at 537-38.

428. 473 U.S. 432 (1985).

429. See id. at 435.

430. See id.

431. See id. at 436-37.

432. Id. at 448.

433. Id.

434. Romer v. Evans, 116 S. Ct. 1620, 1628 (1996).

435. See id. at 1627-29.

436. Id. at 1629.

437. Id.

438. See Cass R. Sunstein, Foreward: Leaving Things Undecided, 110 Harv. L. Rev. 61, 62 (1996). In Moreno, Cleburne, and Romer "rationality review, traditionally little more than a rubber stamp, [was] used to invalidate badly motivated laws without refining a new kind of scrutiny. Id. at 61. Such invalidation was in "response to private fears in Cleburne, desire to exclude nontraditional families in Moreno, [and a] desire to avoid legitimizing homosexuality in Romer." Id. at 62.

439. See id. at 60, 61. After analyzing Moreno, Cleburne, and Romer Professor Sunstein asserts that:

The underlying judgment in Romer must be that, at least for purposes of the Equal Protection Clause, it is no longer legitimate to discriminate against homosexuals as a class simply because the state wants to discourage homosexuality or homosexual behavior. The state must justify discrimination on some other, public-regarding ground. The underlying concern must be that a measure discriminating against homosexuals, like a measure discriminating against the mentally retarded, is likely to reflect sharp "we-they" distinctions and irrational hatred and fear . . . .Id. at 62.

440. See supra notes 422-39 and accompanying text.

441. 478 U.S. 186 (1986).

442. See H.R. Rep. No. 104-664, at 16 n.54 (1996) (citing Bowers v. Hardwick, 478 U.S. 186 (1986)).

443. See Bowers, 478 U.S. at 191-93.

444. See id. at 187-88.

445. See id. at 188-89.

446. See id. at 196.

447. Id.

448. Sunstein, supra note 438, at 65.

449. See id. at 64-65 (noting that because the Romer Court did not mention or cite [Bowers], the current status of [Bowers] is unknown); The Supreme Court--Leading Cases, 110 Harv. L. Rev. 135, 162 (1996) (noting that the Romer Court "declined to even mention Bowers v. Hardwick, thus avoiding the question of whether Bowers has any impact on equal protection claims").

450. See Romer v. Evans, 116 S. Ct. 1620, 1629 (1996) (Scalia, J., dissenting) (stating, "[i]n holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts [Bowers v. Hardwick] . . . [which was] pronounced only ten years ago").

451. Id. at 1631.

452. See Watkins v. United States Army, 875 F.2d 699, 720 (9th Cir. 1989) (Norris, J., concurring) (stating that "[w]hatever one might think about the Hardwick Court's concerns about substantive due process in general and the right of privacy in particular, these concerns have little if any relevance to equal protection doctrine"); Kentucky v. Wasson, 842 S.W.2d 487, 499 (Ky. 1992) (stating that "[u]nlike the Due Process Clause analysis provided in Bowers v. Hardwick, equal protection analysis does not turn on whether the law . . . transgresses `liberties that are "deeply rooted in this Nation's history and tradition"'") (quoting Bowers v. Hardwick, 478 U.S. 186, 192 (1986) (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (Powell, J., plurality opinion)); see also infra notes 453-59 and accompanying text. But see Dean v. District of Columbia, 653 A.2d 307, 340 (1995) (noting that "four federal courts of appeals have ruled--primarily by reference to the Supreme Court's due process decision in Bowers v. Hardwick . . . --that homosexuals do not comprise a suspect or quasi-suspect class") (citing High Tech Gays v. Defense Indus. Security Clearance Office, 895 F.2d 563, 570-73 (9th Cir. 1990); Ben Shalom v. Marsh, 881 F.2d 454, 564-66 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 102-04 (D.C. Cir. 1987)).

453. 875 F.2d 699 (9th Cir. 1989).

454. See id. at 718.

455. Id. at 718-19 (Norris, J., concurring) (quoting Bowers v. Hardwick, 478 U.S. 186, 192 (1986) (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (Powell, J., plurality opinion))).

456. Sunstein, supra note 438, at 67.

457. See id. Professor Sunstein explains that "[t]he Equal Protection Clause sets out a normative ideal that operates as a critique of existing practices; the Due Process Clause safeguards rights related to those long-established in Anglo-American law." Id. This point was emphasized by Judge Norris in Watkins v. United States Army. See Watkins, 875 F.2d at 718 (Norris, J., concurring). According to Justice Norris:

The relevant inquiry in equal protection jurisprudence is fundamentally different from the relevant due process inquiry. The due process clause, as the Court recognized in [Bowers], protects practices which are "deeply rooted in the Nation's history and tradition." The equal protection clause, in contrast, protects minorities from discriminatory treatment at the hands of the majority. Its purpose is not to protect traditional values and practices, but to call into question such values and practices when they operate to burden disadvantaged minorities.Id. (Norris, J., concurring) (quoting Bowers v. Hardwick, 478 U.S. 186, 192 (1986) (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (Powell, J., plurality opinion))).

458. See supra notes 452-57 and accompanying text.

459. Nabozny v. Podlesky, 92 F.3d 446, 458 n.12 (7th Cir. 1996) (citation omitted).

460. See Watkins, 875 F.2d at 716-17.

461. See Wardle, Senate Hearing, supra note 24, at 40.

462. See id.

463. See Romer v. Evans, 116 S. Ct. 1620, 1623 (1996).

464. Id. (quoting Amendment 2) (emphasis added).

465. Sunstein, supra note 438, at 66.

466. See supra notes 463-65 and accompanying text.

467. See supra notes 463-65 and accompanying text.

468. See H.R. Rep. No. 104-664, at 16 (1996) ("The Committee is struck by the fact that this entire issue of same-sex `marriage,' like so much of the debate related to the matters of sexual morality, is being driven by the courts.").

469. Id. at 17.

470. See infra notes 473-79 and accompanying text.

471. See infra notes 138, 143, 473-79 and accompanying text.

472. See infra note 473 and accompanying text.

473. See 142 Cong. Rec. H7498 (daily ed. July 12, 1996). The text of the amendment read as follows:

(1) Subsection (a) shall not apply if the State in which the persons affected by such application of subsection (a) has determined that the definition of "marriage" or "spouse", or both, shall be different than subsection (a), provided such State determination is in the form of

(A) legislation; or

(B) citizen initiative or referendum

(2) In the case where such a determination is made by judicial decision interpreting a State constitution, subsection (a) shall cease to apply if the minimum time necessary in that State for an amendment to the State constitution elapses and the State's determination remains in effect.

(3) In the case where such a determination is made by judicial decision interpreting a State statute, subsection (a) shall cease to apply with the adjournment of the next session of the State legislature.Id.

474. See 142 Cong. Rec. H7501 (daily ed. July 12, 1996). The amendment was defeated by a vote of 311 to 103. See id.

475. See supra note 143.

476. See 142 Cong. Rec. H7484-85 (daily ed. July 12, 1996). This contradiction is apparent within the congressional debates. At one point, with regard to Congressman Frank's first amendment, which would have repealed the federal definition of marriage completely, Congressman Sensenbrenner of Wisconsin argued that, "This is not a states' rights amendment. This amendment would allow the will of Congress to be usurped by three justices on a divided Hawaii Supreme Court. . . . I do not think that Congress should be forced by Hawaii's State Court to recognize a marriage between two males or between two females." Id. at H7484 (statement of Rep. Sensenbrenner). Congressman Frank responded by stating, "The second version of this amendment says that we will recognize marriages so declared by states if they are done democratically by legislation or by referenda. . . . Would that make any difference in his argument?" Id. (statement of Rep. Frank). Congressman Sensenbrenner responded, "at least in terms of Federal benefits, to me, no. . . . I think Congress should decide whether the domestic spouses of gays and lesbians should get Social Security benefits." Id. at H7485 (statement of Rep. Sensenbrenner). Congressman Frank then stated,

when people use arguments they do not really mean, that is an indicator. The gentleman from Wisconsin made a big point of saying, we cannot do it if Hawaii does it by court, if they do not do it democratically. When I mentioned an amendment that would allow that, it is, oh never mind. Do not use arguments you do not mean. Do not make up arguments.Id. (statement of Rep. Frank).

477. H.R. Rep. No. 104-664, 42 (1996).

478. See supra notes 319-21 and accompanying text.

479. See supra notes 473-74 and accompanying text.

480. See supra notes 319-21, 473-77 and accompanying text.

481. 5 U.S. (1 Cranch) 137 (1803).

482. See id. at 177, 180. In Marbury, the Court held that "it is emphatically the province and duty of the judicial department to say what the law is." See id. at 177. The Court also held that a law repugnant to the constitution is void; and . . . courts as well as other departments, are bound by that instrument. See id. at 180.

483. 852 P.2d 44 (Haw. 1993).

484. See Marbury, 5 U.S. (1 Cranch) at 177, 180.

485. See 142 Cong. Rec. H7277 (daily ed. July 11, 1996) (statement of Rep. Hoke); id. at S10106 (daily ed. Sept. 10, 1996) (statement of Sen. Gramm).

486. See infra notes 487-88 and accompanying text.

487. See supra notes 125-26 and accompanying text.

488. See Sunstein, Senate Hearing, supra note 24, at 45 (stating that "if the full faith and credit clause is interpreted to require states to respect certain marriages, and if [DOMA] negates that requirement, [DOMA] raises serious constitutional doubts").

489. See supra notes 487-88 and accompanying text.

490. See H.R. Rep. No. 104-664, at 18 (1996) (stating that the federal government "currently provides an array of material and other benefits to married couples . . . If Hawaii (or some other state) were to permit homosexuals to "marry," these benefits would, absent some legislative response, presumably have to be made available to homosexual couples"); see also supra notes 163-65.

491. See H.R. Rep. No. 104-664, at 18.

492. See H.R. Rep. No. 101-664 (1996). The report briefly discusses the impact of same-sex marriage on federal law, and fails to mention any economic findings or studies. See id. at 10-12, 18.

493. See M.V. Lee Badgett, Ph.D. & Josh A. Goldfoot, For Richer, For Poorer: The Freedom to Marry Debate, Angles, May 1996. The authors discuss the many reasons why the costs of recognizing marriages between persons of the same sex would not increase government expenditures in the State of California. See id. The following factors were considered: how marriage creates many economic supports, and thereby decreases the number of families enrolled in public assistance programs; the impact on federal income tax revenues; marital exemptions on other taxes; spousal and survivor benefits; and the impact on private sector businesses. See id.

494. See id. at 3; see infra notes 495-502 and accompanying text.

495. See id. at 3.

496. See id. Badgett and Goldfoot explain that "[t]he traditional married couple, with the wife working in the home and the husband in the workforce, receive a marriage benefit (averaging $1399 in 1994) since they pay less in taxes than they would pay separately if single." Id.

497. See id.

498. Id. (citations omitted).

499. See Badgett & Goldfoot, supra note 493, at 3.

500. See id. ("Results of recent studies imply that 10-15% of two-earner couples might decide not to marry because of the marriage penalty. That means that 85-90% of such couples would still marry, contributing an additional $1,244 [per couple] in federal taxes.").

501. See id.

502. Id. (footnote omitted).

503. See supra note 492 and accompanying text.

504. See supra notes 495-502 and accompanying text.

505. See 142 Cong. Rec. H7487 (daily ed. July 12, 1996) (statement of Rep. Funderburk). Congressman Funderburk of North Carolina stated, "people in my district . . . are outraged that their tax money could be spent paying veteran's benefits or Social Security based on the recognition of same-sex marriages." Id. (statement of Rep. Funderburk). Congressman Canady of Florida argued, "[w]e have a responsibility as the Congress to determine how Federal funds will be spent, and I believe it is certainly within our prerogative to determine that those funds will not be used to support an institution which is rejected by the vast majority of American people." Id. at H7489 (statement of Rep. Canady).

506. 142 Cong. Rec. H7493 (daily ed. July 12, 1996) (statement of Rep. Weldon).

507. See supra note 508 and accompanying text.

508. See Gary Boulard, Numbers, The Advocate, Oct. 4, 1994, at 30-31 (reporting on three studies conducted by: Overlooked Opinions in 1991, Yankelovich Partners in 1994, and University of Maryland Professor M.V. Lee Badgett in 1994). The results were as follows: Overlooked Opinions found that the average household income for gay males and lesbians was $51,325 and $45,927 respectively; Yankelovich Partners found that the average income for individual gay males and lesbians was $37,400 and $34,800 respectively; and Professor Badgett found that the average income for individual gay males and lesbians was $26,321 and $15,056 respectively. See id.

The Overlooked Opinions study has been criticized as being deceptive because it surveyed gays and lesbians who were more likely to have higher incomes and more education than most gay people. See M.V. Lee Badgett, Beyond Biased Samples: Challenging the Myths on Economic Status of Lesbians and Gay Men, at 2-3 (School of Public Affairs, University of Maryland, Dec. 1994) (on file with the author). Professor Badgett's study has been criticized for having a "`small sample'" with "`a very large margin of error.'" See Boulard, supra, at 31 (quoting Tom Smith, University of Chicago General Social Survey).

Right-wing groups opposed to gay and lesbian equal rights have used the numbers from the Overlooked Opinions study by arguing that gays and lesbians are not a disadvantaged minority in need of equal rights legislation. See Badgett, supra, at 1. Professor Badgett argues that findings which show that gay and lesbian income levels are lower than heterosexual income levels "provide evidence that economic differences exist between people with differing sexual orientations." M.V. Lee Badgett, The Wage Effects of Sexual Orientation Discrimination, 48 Indus. & Lab. Rel. Rev. 726, 737 (1995). Rick Barrick, President of PointOne Management Company (a firm in Washington, D.C. that has targeted a credit card at gays and lesbians), stated that "`[w]hat the numbers really show is how diverse and varied we are as gay and lesbian people. . . .'" Boulard, supra, at 31.

509. See supra note 505 and accompanying text; see also Mark Miller, We're Family and We Have Rights, Newsweek, Nov. 4, 1996, at 54. Newsweek featured an interview with Melissa Etheridge, who is openly gay. See id. Etheridge stated, "I do believe that as an American citizen, a law-abiding, taxpaying--major-taxpaying--citizen, that I should be allowed the same rights, the same pursuit of happiness that every other citizen enjoys." Id.

510. See supra notes 143, 508 and accompanying text.

511. See supra note 143 and accompanying text.

512. Romer v. Evans, 116 S. Ct. 1620, 1627-29.

513. See id. at 1627.

514. See infra notes 516-29 and accompanying text.

515. See infra notes 516-21 and accompanying text.

516. H.R. Rep. No. 104-664, at 13 (1996) (emphasis added) (quoting Professor Hardley Arkes).

517. 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of Rep. Largent).

518. 142 Cong. Rec. S10111 (daily ed. Sept. 10, 1996) (statement of Sen. Byrd).

519. Id. at S10109 (statement of Sen. Byrd).

520. Id. at S10117 (statement of Sen. Faircloth).

521. 142 Cong. Rec. H7482 (daily ed. July 12, 1996) (statement of Rep. Barr).

522. See supra notes 391-95; infra notes 523-24 and accompanying text.

523. See H.R. Rep. No. 104-664, at 15-16 (1996).

524. 142 Cong. Rec. H7487 (daily ed. July 12, 1996) (statement of Rep. Delay).

525. See Idelson, supra note 136 at 1682, 1683.

526. See id.

527. Id.

528. See id.

529. Id.

530. Romer v. Evans, 116 S. Ct. 1620, 1627 (1996); Cleburne v. Cleburne Liv. Ctr., Inc., 473 U.S. 432, 448 (1985); Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

531. 466 U.S. 429 (1984).

532. Palmore, 466 U.S. at 433.

533. Id. (quoting Palmer v. Thompson, 403 U.S. 217, 260-61 (1971) (White, J., dissenting)).

534. See supra notes 516-29 and accompanying text.

535. Romer v. Evans, 116 S. Ct. 1620, 1627 (1996); Cleburne v. Cleburne Liv. Ctr., Inc., 473 U.S. 432, 448 (1985); Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

536. 116 S. Ct. 1620 (1996).

537. See id. at 1628.

538. See id. at 1627.

539. See supra Part III.A.2

540. See supra notes 138, 143 and Part III.A.1

541. See supra Part III.B

542. See supra notes 516-29 and accompanying text.

543. See Romer, 116 S. Ct. at 1628-29.

544. Id. at 1628 (quoting Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).

545. Id. at 1629.

546. 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of Rep. Lewis).

* For my partner, Laurie, my stepdaughter, Coby, my mother, and my sister, Kathryn. Special thanks to Mary Bonauto of G.L.A.D. for her willingness to share her time and expertise.