24. What If DOMA Had Been About Something Other Than Marriage?

Why Windsor’s reasoning might not have worked in a different legal context

The Supreme Court’s 2013 decision in United States v. Windsor struck down part of the Defense of Marriage Act (DOMA). But here’s a what-if: What if DOMA had been about something other than marriage—something where states don’t usually take the lead?

This question helps us understand why the Court’s reasoning in Windsor worked so well—and why it might have failed if the law had been written differently.

Why Federalism Helped Strike Down DOMA

In Windsor, Justice Kennedy didn’t just say DOMA violated equal protection. He also emphasized something else: federalism—the idea that certain powers belong primarily to the states. Marriage, historically, has been one of those areas. States have long set their own rules about who can marry whom.

So when Congress passed DOMA and defined marriage as only between a man and a woman for federal purposes, Kennedy saw that as a red flag. The federal government was stepping into territory it had usually left to the states. That departure from tradition helped convince the Court that DOMA was designed to harm same-sex couples. In other words, federalism made DOMA look especially suspicious.

What If DOMA Had Been About Civil Rights Instead?

Now imagine a different version of DOMA. Suppose Congress passed a law saying that sexual orientation doesn't count as protected under federal anti-discrimination laws, like Title VII or the Fair Housing Act.

That would still be a big deal, but it wouldn’t trigger the same federalism concerns. Why? Because federal civil rights laws have always been set by Congress. There’s no tradition of letting states take the lead.

So in that scenario, the argument that “Congress is overstepping its bounds” would disappear. And without that federalism concern, Windsor’s reasoning would lose its extra punch.

Why That Would Make Equal Protection Harder to Win

Without the federalism angle, the case would rest entirely on equal protection—specifically, whether it’s unconstitutional to deny LGBTQ+ people protection under civil rights laws.

But here’s the catch: back in 2013, the Court had not yet decided whether laws that discriminate based on sexual orientation should get heightened scrutiny.

In Windsor, the Court avoided that question. Kennedy blurred the lines between federalism and equal protection, letting the two reinforce each other. But if DOMA had dealt with something like civil rights law instead of marriage, that blend wouldn’t have worked. The Court would have had to face the tougher question head-on.

Do you think federalism should matter in deciding whether a law is discriminatory? Or should equal protection stand on its own, no matter who passes the law?