All constitutional lawyers agree

that the Defense of Marriage Act is unconstitutional. So said Sen. Rick Santorum on the NewsHour (see here, roughly at the 9 minute mark), explaining why the Federal Marriage Amendment is needed:

The Supreme Court case in Lawrence versus Texas last year was very clear. The majority opinion was very clear. It signaled clearly that the Defense of Marriage Act was not going to stand. Every left, right, and middle constitutional lawyer in this country have all said that as a result of the Lawrence decision, the Defense of Marriage Act will not stand.

Yesterday on CNN, Sen. Hatch likewise said “most likely all constitutional authorities say the Defense of Marriage Act will be ruled unconstitutional” (I’m quoting a transcript on this).

Now I don’t want to quibble with the “every . . . constitutional lawyer” — Sen. Santorum is entitled to a bit of hyperbole. But even taking that into account, it semes to me the Senator is just wrong. The Court did not clearly say or signal that DOMA was unconstitutional; the Court held that criminalizing sexual conduct violated people’s liberty, not that homosexual couples were entitled to equal access to the benefits flowing from marriage. And my sense is that most constitutional scholars (not all, but most) that have considered the issue believe DOMA would be upheld. Indeed, some people, mostly liberals, have argued that DOMA is unconstitutional — but not remotely the broad swath that Santorum is suggesting.

One can plausibly argue that courts might strike down DOMA. I doubt that they will, but if one thinks that would be a really awful result, one could argue that we should preempt it now, rather than waiting for later. Of course, if one’s concern is really about courts forcing the pro-gay-marriage position on states that oppose gay marriage, the solution would be an amendment that constitutionalizes DOMA. There’d be no need for an amendment that would force the anti-gay-marriage position on states that support gay marriage (which is what the FMA would do).

But in any event it seems to me incorrect to argue that somehow the courts’ striking down DOMA is a foregone conclusion — and especially to argue that all or nearly all constitutional lawyers make such a prediction.

NOTE: It would also be wrong, I think, for those who say DOMA is unconstitutional to use DOMA’s existence as an argument for why the FMA is unnecessary. (I suppose they could argue that DOMA is unconstitutional but courts will still uphold it, so the FMA is unnecessary because of that; but that still doesn’t seem quite right to me, because they’d essentially be arguing that their fellow citizens should just rely on the government’s violating the constitution. At the very least, such an argument ought to be made explicitly.)

If anyone can point me to specific examples of both of these arguments being made, likely at separate times, by a particular person or organization, I’d love to see that. Note, though, that I’m looking for the person or group making specifically those arguments. It’s not just that they argue that DOMA is bad policy and that the FMA is unnecessary, or that DOMA is unconstitutional and that the FMA is unwise, or anything else. To deserve condemnation, they need to have argued that DOMA is unconstitutional and have also argued that the FMA is unnecessary because of DOMA.