DOMA is Dead


Lots of people will be blogging about the Supreme Court's decision today striking down DOMA [Decision].  As regular readers  know, we filed amici briefs in the First, Second and Ninth Circuits and again at the Supreme Court on behalf of historians supporting the plaintiffs' claims to strike down the statute and the states' authority to adopt marriage equality.

It was extremely gratifying to see the Supreme Court adopt in its decision points made in our amici brief:  DOMA was historically unprecedented, because until DOMA was enacted, the federal government consistently accepted each state’s own determination of marital status, even while the various states differed significantly in their definition of marriage. 

Here's another point, however, that probably won't be highlighted in the discussions you'll see today.  In one respect, I think Justice Alito, in his dissent, got it absolutely right. 

He said that there are, generally speaking, two different views of marriage, one "conjugal" and one based on consent, and the latter view won today.  I won't try to explain what he means by conjugal, but I think he is spot on in saying the consent concept prevailed.  As we explained in our brief, "Marriage has always been a civil contract in our nation, embodying individuals’ free consent to join in long-lasting intimacy and a shared economic fate."   

This is why, we noted, slaves were not allowed to marry.  After the civil war, an army chaplain in Mississippi remarked on the “very decided improvement in the social and domestic feelings of thosemarried by the authority and protection of Law.  It causes them to feel that they are beginning to be regarded and treated as human beings."