Ed Whelan: DOMA and Laws Protecting Marriage Stand and Fall Together


Legal scholar Ed Whelan pushes back against the New York Times in NRO's Bench Memos blog:

“Six federal courts have ruled on the Defense of Marriage Act and reached the same conclusion”—that DOMA is unconstitutional. So declares the New York Times in its house editorial today, in a half-truth that rises above the NYT’s usual level of accuracy. It’s also true, as the House of Representatives’ certiorari petition spells out (on pp. 9-10), that five or so federal courts have rejected the constitutional challenge to DOMA,[...]

... The NYT also states that the “legal challenge over federal benefits [DOMA] is a matter separate from the broader question of whether gay people have a constitutional right to marry.” But, notwithstanding confusion over false federalism interests supposedly implicated by DOMA (see my point 3.b here), I see no plausible basis on which the Court could invalidate DOMA without adopting reasoning that would compel invention of a federal constitutional right to same-sex marriage. So don’t be snookered by the suggestion that the two issues are meaningfully distinct.