Under the Defense of Marriage Act, the federal government does not recognize same-sex marriages even in states that have legalized it. This week, the Supreme Court ruled DOMA unconstitutional. There are two possible grounds, distinct and in some ways contradictory, for doing so. The curious thing about the court’s DOMA decision is that it contains both rationales. The first is federalism. Marriage is the province of the states. Each state decides who is married and who is not. The federal government may not intrude. It must therefore recognize gay marriage where it has been legalized. If that were the essence...
