Why the Defense of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors That Determine What the Constitution Requires

This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional - at least not yet. DOMA provides that States need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister States. The Article first shows that the Supreme Court's recent opinion in Lawrence v. Texas, which struck down as unconstitutional state laws that criminalized sodomy, has not invalidated the DOMA. Lawrence is best understood as having left undecided the constitutional status of same-sex marriage, and the Article explains the benefits of the Court's having held back its constitutional judgment on this subject at this time. The Article then debunks the many arguments that numerous scholars proffered before Lawrence that DOMA exceeded Congress' authority. Claims that the DOMA violates state sovereignty by interfering with a family law subject that appropriately falls to the domain of the States are premised on a mischaracterization of the DOMA: the statute does not regulate family law as such, but serves the quintessentially federal function of determining the extraterritorial effect of State law. Arguments that the DOMA undermines Full Faith and Credit's fundamental principle of unifying the country overlook a second animating principle behind Full Faith and Credit with which the DOMA is fully consistent - the preservation of meaningfully empowered States. Furthermore, while virtually all scholarly critiques have assumed that the DOMA authorizes States to deviate from Supreme Court precedent regarding the enforcement of judgments, the Article shows that DOMA actually fills a gap in the Court's jurisprudence in a manner that is consistent with precedent. Even were this not so, DOMA would not be unconstitutional, the Article argues, because Congress has authority to legislate full faith and credit rules that vary from those identified in Supreme Court opinions. In the end, the Article's analysis suggests that if and when the Court strikes down the DOMA, its unconstitutionality is appropriately grounded in Lawrence-type liberty grounds rather than on the basis of the Full Faith and Credit Clause; the Full Faith and Credit Clause should not be used to thwart differences across states in respect of substantive policies that themselves are not unconstitutional. In the interim, DOMA is best understood as an instance of congressional participation in the process of defining our country's constitutional culture; the Court has not yet decided the constitutionality of same-sex marriage, and the DOMA reflects the political branches' contribution, by means of the institutional tools at their disposal, to the process of deciding how American political culture should deal with the incidents of gay life. DOMA's actual effects on constitutional culture remain to be seen: will it shape societal views, prompt angry opposition, or something else? Certainly until the Supreme Court takes a definitive position, and perhaps even after, other societal actors (including States and citizens themselves) are entitled to react to Congress' currently reflected views on same-sex marriage and thereby participate in the ongoing development of American constitutional culture.