More On DOMA's Demise

Section 3 of DOMA is toast, but Section 2, which does allow states to discriminate still on same-sex marriage, may be ripe for challenge.  James Joyner explains:

It occurs to me, however, that the impact of Windsor is effectively to render gay marriage the law in all 50 states.

Recall that the chief motivating fear of the Defense of Marriage Act was to prevent a judge in one state—Hawaii, where gay marriage remains illegal, was thought to be the likely culprit—declaring limiting marriage to one man and one woman violated the Equal Protection Clause, people flocking to that state to marry, and returning back home and,  because of the Full Faith and Credit Clause, being deemed legally married at home.

Well, SCOTUS has now said that the Equal Protection Clause prevents Congress from discriminating against gays as a class, at least in the arena of marriage, which is fundamentally the province of states. Given that, then, doesn’t the Equal Protection Clause mean that residents of Alabama are now free to travel to California, tie the knot, and then able to demand recognition of their marriage back home?

If not, why not?

I personally think the court is now waiting for this exact challenge.   The logic striking down Section 3, that singling out same-sex couples for federal discrimination is itself unconstitutional, would have to apply to the individual states as well.

Or it would, if the courst would be given a reason to say so.  That appears to be the next step:  someone getting married in say California or New York and moving to Florida or some other anti same-sex marriage state, and then suing under DOMA.

I would have to think that would be the thing to do.  Somebody will, just a question of how quickly that case gets to SCOTUS.

When it does, bang.  Five votes to say denial of same-sex marriage violates the Fifth Amendment.