DOMA Being Unconstitutional v. Supreme Court Finding DOMA Unconstitutional

June 22nd, 2013

As I was scrolling through Slate’s fun Breakfast Table feature, I was somewhat surprised to see this headline from a piece by Walter Dellinger:

Entry 3: When DOMA passed, no one imagined it could be unconstitutional.

That can’t be right. Lots of people thought DOMA was unconstitutional in 1996. Relatedly, as pointed out by Justice Scalia during the Prop 8 Arguments, some thought that bans on same-sex marriage became unconstitutional at some point after 1868.

But that isn’t exactly what Dellinger wrote. If you scroll alllll the way down to the last paragraph, you see this:

The gay marriage cases loom large over the court’s last week. This is an amazing social moment. I will try to write more about it over the weekend. But for now I can say that no one thought, when the Defense of Marriage Act was enacted in 1996, that it was conceivable that the Supreme Court would declare it unconstitutional. And now that is the conventional wisdom. We will see.

Walter’s point was much simpler, and noncontroversial. No one thought that the Supreme Court would find DOMA unconstitutional. Agreed.

But of course, this raises the never-ending debate about what does constitutional mean. Is it only what five justices think? No need to delve into that now. But Slate’s headline writers should be a bit more careful (also, Walter’s post was about so much more than that nugget, but that seemed to be the only lede they wanted).

Update: I was reminded by Ken M. that much of the constitutional objections to DOMA in 1996 focused on Federalism. Congress held hearings on whether it possessed the powers under the Full Faith and Credit Clause to pass DOMA, which affected how one state could or could not recognize records from another state.