The article discusses the history of federal inroads into marriage by examining federal interventions during the nineteenth and early twentieth century, argues that, in some cases but not all, marriages' federal benefits are indeed intended to support natural procreation, argues that DOMA's underlying statutes are key to ascertaining the purposes of federal marriage benefits and burdens, distinguishes sexual orientation discrimination from race discrimination and offers a proposal for dealing with equal protection challenges to denials of marriage rights to same sex couples. The proposal, which depends upon dual standards of review, recognizes the historical denial of family rights to same sex couples while reserving to the Congress its right to make decisions about spending priorities from the public purse.
GW Paper Series
GWU Legal Studies Research Paper No. 2013-79; GWU Law School Public Law Research Paper No. 2013-79
W. Burlette Carter, The “Federal Law of Marriage”: Deference, Deviation, and DOMA, 21 AM. U. J. GENDER SOC. POL’Y & L. 705 (2013).