Federalism May Preserve State Gay Marriage Bans

The Constitution could rule out DOMA, but not local restrictive definitions

If the Supreme Court strikes down the federal Defense of Marriage Act, one of the key arguments driving that result could also preserve similar bans on gay marriage in more than three dozen states for years to come.

That pivotal argument is federalism versus states' rights. It is at the heart of what led nine states and the District of Columbia to allow same-sex marriage in the first place – actions that ultimately led to the legal challenge over the Defense of Marriage Act, known as DOMA.

Hewing closely to the principle of states' rights could lead the court to leave the issue to the states for the foreseeable future, without the strong constitutional ruling that advocates and liberals hoped for when the court agreed to hear the issue.