Same-Sex Marriage, the Defense of Marriage Act, and the Rights of Children

Today my DU colleague, Catherine Smith, and I, along with Tanya Washington from the Georgia State University College of Law, filed an amicus brief in United States v. Windsor, better known as the case before the United States Supreme Court challenging the Defense of Marriage Act (DOMA).  (The brief can be found on SCOTUSblog here:


Sweet photo from

DOMA was enacted in 1996 under the watch of President Clinton (truly the ultimate defender of the sanctity of marriage).  It was passed in the same-sex marriage panic following the Hawai’i Supreme Court’s tentative suggestion that the principle of equal protection of the laws might require states to allow same-sex couples to wed.  In response to this development, Congress rushed to pass legislation with no other purpose than to make certain that, even as states evolved to permit same-sex marriages, the federal government could continue to refuse to recognize these unions.

There are many, many ways to attack the constitutionality of DOMA.  First, it is an unprecedented interference by the federal government in the state-law realm of marriage policy.  Historically, the institution of marriage has been regulated by the states and, barring any unconstitutional regulations (such as laws prohibiting interracial marriage), the federal government accepts the definition of marriage that states elect.  Thus, DOMA represents a significant intrusion into states’ autonomy.  Second, DOMA represents unjustified discrimination against homosexuals.  Whatever may be the traditional understanding of marriage, in 2013, there is no rational basis for allowing heterosexual couples to marry while preventing homosexual couples from doing so.  Third, by excluding homosexual couples who are in all other relevant respects similarly situated to heterosexual couples, DOMA impermissibly expresses bare moral disapproval of homosexuals—something the law does not permit.

But there is another, damning critique of DOMA that has received less attention, and that is the focus of the amicus brief we filed today.  The Supreme Court—which has been ambivalent and inconsistent on so many issues of constitutional law—has consistently held that laws may not punish children for the conduct of their parents.  Thus, laws may not prevent illegitimate children from receiving benefits upon the death of a parent to express moral disapproval of childbirth out-of-wedlock, or in an effort to “incentivize” adults to marry.  Nor may the laws deny public education to children because their parents are present in the country illegally, or in an effort to stem the tide of illegal immigration.  Nor may a family court take custody of a child away from the mother because society disapproves of the mother’s interracial relationship.

The federal government provides myriad benefits to the families of federal employees—benefits that support the adults in those families and that also flow to the children, thereby supporting stable environments in which to raise those children.  Indeed, that access to federal benefits helps children is beyond argument, and is even, oddly enough, one of the reasons given in support of DOMA.

It is an odd reason to give in support of DOMA because DOMA does nothing to enhance the flow of benefits to children; rather, DOMA functions to exclude an entire sub-class of children from this type of support, simply because the children’s parents are of the same sex.

Regardless of whether one thinks it is acceptable for Congress to express moral disapproval of same-sex couples (a proposition I obviously don’t agree with), it is patently impermissible to punish the children of same-sex couples based on that moral disapproval.

There are many reasons the United States Supreme Court should find DOMA unconstitutional.  Its effect on the children of same-sex couples—both in excluding their families from benefits and in stigmatizing their families as lesser than other families—is perhaps one of the most compelling.


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