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Empiricism to the Rescue? Do State DOMA’s Actually “Protect” Traditional Marriage

Posted on: November 11th, 2013 by Art Leonard No Comments

There is a new on-line law review article that throws down the gauntlet on the question whether state-enacted DOMA statutes and constitutional amendments actually “protect” traditional marriage.  As of May 2014, same-sex marriage will have been legal in Massachusetts for a decade.  Since then, 14 states and the District of Columbia have made it possible for same-sex couples to marry, and two more states are about to join that group: Illinois (pending the governor’s signature on the recently passed bill, now scheduled for Nov. 2) and Hawaii (pending final passage in the state Senate, probably tomorrow, and signature by the governor shortly thereafter).  At the same time, of course about 30 states have constitutional amendments banning same-sex marriage, and some additional states ban it by statute.  So we have the set-up for an obvious empirical study.

Now somebody is taking on the challenge.  Dierdre M. Bowen, a professor at Seattle University’s law school, has published a brief-piece in the online law review of the University of Denver, describing the study she is undertaking and the first steps already completed.  See “Windsor’s Purgatory: State DOMA’s Can’t Stabilize Straight Marriages, But They Can Still Prevent Gay Marriage,” 91 Denv. U. L. Rev. Online 25 (2013).  The first steps are to establish base rates of marriage and divorce in states that have adopted DOMA statutes or constitutional amendments and to compile and compare data about those rates.  Have states that enacted DOMA’s experienced improved rates of marriage or declining rates of divorce among different-sex couples?  How do they compare with states that have allowed same-sex marriage?  The data on this is more limited, since most states allowing same-sex marriage have only done so for a few years, given the rapid pace of enactments in 2012 and 2013, and the time lag in California (Nov. 2008 through June 2013) when Prop 8 barred same-sex marriages.

But it is not too early to start investigating whether the enactment of a DOMA changes the picture in a state respecting marriage and divorce rates, and perhaps looking at how neighboring states fare, comparing DOMA states, non-DOMA states, and marriage equality states over particular periods of time.

I’m delighted Bowen is doing this because, as her initial findings suggest and as my intuition tells me, data will confirm that DOMAs don’t “protect” traditional marriage at all.  They are about excluding, not really about protecting, and I doubt that there will be any statistical significance in rates of change on these measures when comparing these jurisdictions.