Forthcoming in 19 William & Mary Bill of Rights Journal, March 2011.


This paper addresses federalism objections to Section 3 of the Defense of Marriage Act (DOMA). Ordinarily, the federal government accepts state’s determinations of what couples are validly married. Section 3 of DOMA, however, fashions a broad exception for same-sex couples, who are definitionally deemed not to be in “marriages.” In addition to equal protection and full faith and credit challenges to DOMA, litigants have made constitutional federalism arguments. In Massachusetts v. United States Department of Health and Human Services, the federal trial court accepted one such argument, though in a form that seemingly categorically denies the federal government authority over marital status. This paper critiques such categorical federalism arguments and finds more plausible a more nuanced, uncategorical federalism argument against DOMA Section 3 based on existing constitutional precedents, an argument that relies on a confluence of factors to conclude that this provision of federal law is unconstitutional.


Civil Rights and Discrimination | Human Rights Law | Sexuality and the Law

Date of this Version

January 2011