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defense of marriage amendments, DOMAs, state action, equal protection, discrimination, gender, same-sex


This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a testament to the law of unintended consequences, a cautionary tale about state experimentalism, and comment on the aspiration and limits of neutral principles of adjudication.

Library of Congress Subject Headings

Same-sex marriage--Law and legislation--United States., Same-sex marriage--Law and legislation--United States, Discrimination, Equality before the law--United States, State action (Civil rights), Sex (Psychology), Same-sex marriage