Senator Santorum on DOMA and Lawrence

[Trevor Morrison]

I understand Matt's main point in his NRO article to be that a majority of the Court is likely to analogize the gay marriage issue to Loving v. Virginia, and thus to recognize a constitutional right to gay marriage.  DOMA would fall as a kind of side effect of such a holding.

Matt might ultimately be right as a predictive matter, though, as many have noted time and again, there's much in the Lawrence majority opinion to suggest that the Court doesn't want to face that issue any time soon.  But even if Matt is right, his point is a far cry from Senator Santorum's statement, made as a confident description of fact, that there is a consensus in the scholarly community that Lawrence itself renders DOMA unconstitutional.  So far, I can't see anything even arguably correct in the Senator's statement.


---------- Original Message ----------------------------------
From: "Matthew J. Franck" <mfranck at radford.edu>
Date:  Wed, 14 Jul 2004 20:16:15 -0400

>I do, for one, on grounds that DOMA (as per Lawrence) "irrationally" 
>demeans the dignity of gays and lesbians.  Though my subject was not DOMA 
>per se, I wrote about this four months ago; see
>http://www.nationalreview.com/comment/franck200403160942.asp.  I don't 
>think DOMA will detain the Court for more than a few paragraphs if five 
>justices decide as I speculate there that they might.
>
>Matt
>***************************
>Matthew J. Franck
>Professor and Chairman
>Department of Political Science
>Radford University
>P.O. Box 6945
>Radford, VA 24142-6945
>phone 540-831-5854
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>e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu
>www.radford.edu/~mfranck
>***************************
>At 07:36 PM 7/14/2004, you wrote:
>>Today's broadcast of the Lehrer News Hour on PBS featured Senators 
>>Santorum and Boxer discussing the proposed federal marriage amendment, 
>>which apparently died today in the Senate.  In answering a question about 
>>why the Defense of Marriage Act doesn't adequately protect "traditional 
>>marriage," Senator Santorum said something to the effect that (here I'm 
>>paraphrasing as accurately as memory permits) "every constitutional 
>>scholar in the country who has looked at the issue--left, right, and 
>>center--agrees that the Supreme Court's decision in Lawrence renders DOMA 
>>unconstitutional."
>>
>>Now, I know that all members of the Senate are prone to the occasional 
>>rhetorical flourish now and then, but this struck me as quite an 
>>overstatement.  To be clear, Senator Santorum didn't make the more modest 
>>point that Lawrence suggests that the Court might in the future find a 
>>constitutional flaw in DOMA (even then, I would be inclined to disagree as 
>>a predictive matter).  Rather, he said that DOMA is effectively doomed by 
>>Lawrence itself.
>>
>>I know the List had a discussion about DOMA a few months ago, but I don't 
>>recall anyone then saying that Lawrence renders DOMA 
>>unconstitutional.  Some might think DOMA stands on doubtful constitutional 
>>footing for other reasons, and I recall others thinking that DOMA might 
>>actually be unnecessary given the modest scope of the constitutional Full 
>>Faith & Credit requirement.  So I ask:  does *anyone* think Lawrence 
>>renders DOMA unconstitutional?  On what possible grounds?
>>
>>Trevor Morrison
>>
>>
>>
>>Trevor W. Morrison
>>Assistant Professor of Law
>>Cornell Law School
>>
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