Checking the Balances: An Examination of Separation of Powers Issues Raised by the Windsor Case

Derek Funk.

The legal definition of marriage is currently a prominent issue in political debates and courtrooms across the nation.  Up until the late 1990s, state and federal law universally defined marriage as between a man and a woman.  The push for recognition of same-sex marriages began to gain momentum in 2000, when Vermont became the first state in the U.S. to legalize same-sex civil unions and registered partnerships.  In the next few years, several other states across the nation changed their definitions of marriage to include same-sex couples.  Nevertheless, the federal definition of marriage under the Defense of Marriage Act (“DOMA”), enacted in 1996, continued to define marriage as meaning only a legal union between a man and a woman as husband and wife.

As more and more states changed their definitions of marriage, same-sex marriage advocates criticized the federal definition of marriage, arguing it was unfair and outdated.  A few members of Congress proposed legislation in both the House and Senate repealing the federal definition of marriage set forth in Section 3 of DOMA (“Section 3”).  However, neither bill reached the House or Senate floors.  Meanwhile, President Obama determined that Section 3 violated the Equal Protection Clause of the Constitution.  The Department of Justice (“DOJ”) declared that the executive branch would no longer defend the law if DOMA was challenged in court, but would continue to enforce the law until the judiciary declared the law unconstitutional.

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