State DOMAs, Neutral Principles, and the Mobius of State Action
Volume 81, No. 4, Winter 2008
By Darrell A.H. Miller [PDF]

The Möbius strip–that darling of mathematicians and amateur magicians–is a conceit that captures the twist caused when state action doctrine of a half-century ago intersects with modern so-called defense of marriage amendments (“DOMAs”). Mathematicians define a Möbius strip as a chiral surface with only one side and one edge. In lay terms, it is the product of taking a narrow paper strip, giving it a half-twist in the middle, and then fixing the ends together to form one continuous loop. Features of the Möbius strip make it an appropriate metaphor for the bending of state action doctrine by state DOMAs. One feature is that the Möbius strip is, in mathematical parlance, nonorientable. That is, it has neither a front nor a back, and only by tearing the strip can it be made to have a front or back. The other feature is that one can trace a line from a single point on the surface of the Möbius strip along the length of its contours and end up on the flip side of the strip at the starting point, all without picking up the pencil.

Like the magician’s paper band, Shelley v. Kraemer, the Supreme Court’s sixty-year-old landmark case on state action, can be twisted into a Möbius strip. First, take the core holding of Shelley: a state court that enforces a private racially restrictive covenant is a state actor for purposes of the Fourteenth Amendment. Then give Shelley‘s state action doctrine a half-twist of state constitutionalism: over half of the states have amended their constitutions to forbid marriage between same-sex couples; approximately a dozen of these states forbid even state recognition of legal relationships that are intended to or do confer marriage-like benefits to same-sex couples. So, now Shelley‘s state action principle–state judicial enforcement of racially discriminatory private agreements is state action that violates the Fourteenth Amendment–can be turned by state courts into a rule that forbids state judicial enforcement of private agreements between same-sex couples because such enforcement is “state action” that violates DOMA.

Then, reseal the strip at the end, and you discover the flip side of Shelley. In Romer v. Evans the Supreme Court held that a state constitutional amendment that denied homosexuals legal redress available to everyone else is a form of discriminatory state action forbidden by equal protection. In the words of Justice Kennedy, “[a] law declaring that . . . it shall be more difficult for one group of citizens than for all others to seek aid from the government is . . . a denial of equal protection of the laws in the most literal sense.” Therefore, a state cannot deny gays and lesbians the benefit of general laws of private contract that are enforceable by every other person.

Now we have a Möbius strip. Shelley begins with a general legal proposition: state judicial officers are state actors for purposes of the federal constitution; they cannot enforce certain private agreements when doing so contravenes equal protection. Then we come to the state constitutional twist: state judicial officers are state actors for purposes of the state constitution; they cannot enforce private agreements when doing so contravenes state constitutional imperatives like DOMA. Then, with Romer, we get to the flip side of Shelley: state judicial officers are state actors for purposes of the federal constitution; they cannot refuse to enforce private agreements when doing so contravenes equal protection. As explored below, the resulting doctrinal contortion is at once a testament to the law of unintended consequences, a cautionary tale about state experimentalism, and a comment on the aspiration and limits of neutral principles of adjudication.

In using the trope of the Möbius strip, I do not suggest that law, fraught with human frailty, can be reduced to a set of mathematical principles. Instead, this Essay is an exercise in what the Russian formalists called ostranenie: to “make strange” or “defamiliarize” that which has become routine or habitual in order to better understand its nature. Or, as Professor Tribe puts it, a mathematical metaphor “brings greater awareness of [our] preconceptions” in legal analysis and “creates the possibility of choice and intellectual progress.”

The piece progresses as follows: Part II briefly summarizes the Shelley decision and its impact on state action doctrine. Part III discusses Shelley‘s role in sparking debates about neutral principles of adjudication. It simultaneously explores how state courts have used Shelley and related federal cases to resolve state action questions posed by their own state constitutions. Part IV discusses the history of state DOMAs, the breadth of some of their provisions, and how courts have interpreted some of their terms. In doing so, this Part explains how Shelley is a necessary conceptual antecedent for state court application of DOMAs to private agreements that benefit same-sex couples. It also suggests that Shelley’s state action principle, when twisted by state DOMAs, is a latent threat to judicial enforcement of private ordering between same-sex couples. Part V closes the Möbius loop, discussing how state court invalidation of private agreements between same-sex couples under DOMA could itself violate federal equal protection guarantees after Romer v. Evans. Part VI distills from this process of ostranenie three lessons respecting neutral principles, constitutional avoidance, and the risks of state constitutional experimentalism.

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