This Comment examines the efforts of gays and lesbians to obtain marital rights and the resistance these efforts have encountered. An examination of the law demonstrates that prohibitions on same-gender marriages are unconstitutional at both the federal and state level, particularly with regard to the principle of equal protection. Part II of this Comment begins with a discussion of the interests that marriage serves for the individual citizen and society in general. This Part makes clear that gay and lesbian couples are similarly situated to heterosexual couples with respect to marriage rights. Then, because most arguments against same-gender marriage focus on history and tradition, Part III offers an alternative view that suggests history and tradition actually advocate recognition of same-gender marriages. History and tradition also illustrate many principles that render bans on same-gender marriages unconstitutional. Part IV discusses the due process and equal protection problems that pervade the law and the role these problems play in bans on same-gender marriages. Part V builds on this discussion by documenting the constitutional problems that surround DOMA, while Part VI analyzes the interests advanced by DOMA. This analysis demonstrates that DOMA conflicts with the interests in marriage, family, and children, despite DOMA supporters’ assertions to the contrary. In the end, DOMA is unconstitutional because it serves as a classification for its own sake and fails to serve a legitimate government purpose.
Sherri L. Toussaint,
Defense of Marriage Act: Isn’t It Ironic ... Don’t You Think? A Little Too Ironic?,
76 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol76/iss4/11