It seems clear that the Framers of the Constitution of the United States believed that laws defining and regulating marriage were among the "numerous and indefinite" powers reserved to the states. Early U.S. Supreme Court decisions echoed that sentiment, and as recently as United States v. Lopez, the Court has cited regulation of domestic relations as a quintessentially state power. In 1996 Congress and the President reacted to the possibility that Hawaii might license same-sex marriages by enacting the Defense of Marriage Act, Section 3 which defines the words "marriage" and "spouse" for all federal laws, regulations and programs. This is the first time in our history that such definitions have been promulgated by the federal government; until DOMA, the states' determination of marital status had been used to determine rights and obligations under federal law. Congress was careful to apply DOMA's definitions to federal law only, for fear that mandating them to the states would be unconstitutional. This Article argues that, because of the supremacy and pervasiveness of federal regulation, the practical effect of DOMA's definitions is to mandate them to the states, thus rendering Section 3 of DOMA an unconstitutional invasion of reserved state powers.
Kristian D. Whitten,
Section Three of the Defense of Marriage Act: Is Marriage Reserved to the States,
26 Hastings Bus L.J. 419
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol26/iss2/3