The Malleable Use of History in Substantive Due Process Jurisprudence: How the "Deeply Rooted" Test Should Not Be a Barrier to Finding the Defense of Marriage Act Unconstitutional Under The Fifth Amendment's Due Process Clause

Abstract

Passed in 1996, the Defense of Marriage Act ("DOMA") clarifies "marriage" as referring exclusively to a legal union between one man and one woman as husband and wife. Paralleling the intense social debate over same-sex marriages, DOMA sparked an array of scholarly attacks on its own constitutionality. The author argues that scholarship should not overlook substantive due process jurisprudence in challenging DOMA. The U.S. Supreme Court's use of history in defining fundamental rights under substantive clue process is sufficiently flexible to accommodate same-sex marriages within the fundamental right to marriage. The Court, although emphasizing tradition and history as the roots from which fundamental rights stem, has been willing to overlook, or to selectively read, such history and traditions. The author concludes that a failure to extend fundamental right status to same-sex marriage would in fact undermine some of the Court's most notable precedents in this area of law.