The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). . . . If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question.
March 22, 2013 at 4:28 PM EDT