by Joanna L. Grossman
Abstract
This essay explores how the history of interstate marriage recognition law was central to the Supreme Court’s recognition of constitutional protection for the right of same-sex couples to marry. Prior to the 1990s, there were essentially no laws on same-sex marriage in the United States. That changed in the 1990s, when the Hawaii Supreme Court issued a ruling in Baehr v. Lewin that made authorization of same-sex marriage seem inevitable in that state. The threat fueled the adoption first of the federal Defense of Marriage Act (DOMA) in 1996 and then mini-DOMAs in most states. Those laws were broad and unprecedented. DOMA singled out one type of marriage for non-recognition under any federal law or program, while most federal laws do not provide definitions of marriage, even where marital status is highly relevant such as in eligibility for spousal Social Security benefits. Rather, Congress has traditionally deferred to state law determinations of personal status when applying federal laws. State DOMAs prohibited the celebration of same-sex marriages within their borders and recognition of those celebrated elsewhere. These laws were also unprecedented in that they barred interstate recognition of all same-sex marriages without any consideration of the common-law rules that usually drove such determinations. The departures from the usual approach to federal-state and interstate marriage recognition provided a doctrinal hook for constitutional protection. Although the Supreme Court recognized the right of same-sex couples to marry in Obergefell v. Hodges in 2015, the key inroad was its decision in Windsor v. United States, two years earlier. In Windsor, the Court struck down the federal-law provision of DOMA based on the idea that discrimination of an unusual character raises the specter of animus—and animus cannot be the sole justification for a valid governmental action, even when the targeted group has not been recognized as a suspect or quasi-suspect class. The same argument was then used to attack the state DOMAs. The “discrimination of an unusual character” was the legislatures’ blunt and categorical non-recognition of same-sex marriages, despite strong histories in most states of granting recognition to marriages that were validly celebrated elsewhere despite strong opposition within the state. The opponents of same-sex marriage unwittingly undermined their own cause by enacting such unprecedented and unforgiving non-recognition laws.