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.
Darrell A. H. Miller, State DOMAs, Neutral Principles, and the Möbius of State Action, 81 Temple Law Review 967-994 (2008)
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
Civil Rights and Discrimination Commons, Constitutional Law Commons, Fourteenth Amendment Commons, Sexuality and the Law Commons
Available at: https://scholarship.law.duke.edu/faculty_scholarship/3094