Charles Krauthammer had a column on Friday called A Ban We Don't (Yet) Need. It's about the constitutional necessity for a heterosexual marriage amendment to the federal constitution. You can read it here.

I think I'd tend to disagree with CK's contention that the DOMA isn't likely to be overturned by the current Supreme Court. . . . at least to the extent he's implying that a majority of the Justices don't like gay marriage and therefore they'll never strike down the Act. I think there's a clear argument to be made that DOMA violates the Privileges and Immunities Clauses -- not necessarily a winner, but one that I think the Justices would be forced to consider on its merits if they want to be intellectually honest.

The P&I clause says: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." (This is the P&I clause as stated in art. IV, sec. 2, cl. 1 . . . there's one in the 14th Amendment, too, but it was essentially gutted by the Supreme Court 5 years after it was passed) The purpose of the Art. IV clause was to ensure that citizens traveling throughout the country would receive the same treatment as the citizens of the states through which they passed. (The original thinking was to facilitate the unification of the independent states into one nation, back in the day.) Generally speaking the Supreme Court has read the clause to reach only Ps and Is guaranteed by U.S. citizenship, not state citizenship. Examples of rights of US citizens that the states can't abridge: the right to travel from state to state; the right to vote for federal officeholders; the right to enter public lands; the right to petition Congress to redress grievances; and habeas corpus. Things the states ARE allowed to do: charge lower tuition for in-state residents who attend public universities; charge different rates of income tax; and enact different licensing requirements for doctors, lawyers, etc.

The question posed by DOMA is whether the right to marry a person of the same sex falls into the first category or the second category -- i.e. is that right guaranteed by US citizenship or state citizenship. I see that as a tough call -- in other areas of the law, the Supreme Court has ferociously guarded rights having to do with family, e.g. the right to marry, have children, live with extended family members, etc. (There's a case from several decades ago, for example, that strikes down a state law prohibiting deadbeat dads from getting remarried until they pay all their back child support; and another one that strikes down a zoning law providing for single family housing, which attempted to exclude a grandmother who was raising her two grandkids.) On the other hand, I don't think it's at all clear that the right to marry someone of the same sex falls into this same category of sacrosanct family rights. But the argument can be made.

This may all be somewhat off base, in the end, because for the most part when state laws purport to infringe the fundamental rights of U.S. citizenship, the Court invokes the Equal Protection Clause, not the P&I clause, to analyze the constitutionality of the state action -- there's just a more sophisticated theoretical framework that's been constructed around the EP clause over the years. I think any DOMA challengers would have a tougher row to hoe if they framed their argument under the EP Clause. . . . but that's another story . . .

For those interested in doing more reading up on P&I, here are some links from Findlaw and a more basic legal encyclopedia, which have helped me understand this issue in writing the above.