The Defense of Marriage Act violates the Tenth Amendment

It’s true that the people who wrote and ratified the Fifth and 14th amendments never imagined they were guaranteeing equal treatment for homosexual couples. But that’s because the very notion of gay marriage would have been incomprehensible to them. Treating all married couples equally, without regard to sexual preference, seems like a straightforward application of equal protection to a situation the Framers could not have foreseen, just as they did not foresee television (which is nevertheless protected by the First Amendment) or wiretaps (which are nevertheless governed by the Fourth Amendment).

But even conservatives who reject the equal protection argument should not lightly dismiss the assault on federalism represented by the attempt to impose a national definition of marriage on recalcitrant states. “In effect,” says an especially well-informed critic of this policy, “DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws—including immigration, Social Security survivor rights and veteran’s benefits—has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.”