The Fate of the Marital Union: Is DOMA Approaching Its Last Day?

Written by Lisa Alexander, Public Relations Chair, Albany Government Law Review


DOMA’s days might be numbered.  U.S. Attorney General Eric Holder recently announced that the Department of Justice (DOJ) will no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in court.[1] While the DOJ will continue to appear in litigation and “represent the interests of the United States,”[2] it will no longer argue that Section 3 of DOMA is constitutional as it is applied to same-sex couples.[3] This decision has sparked heated debate and a flurry of proposed legislation.  Though riddled with controversy, the facts support that the executive made an appropriate, and arguably necessary, decision.

A Brief History of DOMA

The Defense of Marriage Act was enacted in 1996.  The crux of the current controversy is Section 3, which defines marriage as a “legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.”[4] DOMA was enacted, at least in part, as a response to Hawaii’s Supreme Court decision Baehr v. Lewin.[5] In Baehr, the court found that while the applicant same-sex couples did not have a fundamental right to marry pursuant to the right to privacy, they could argue their equal protection theory on remand.[6] The possibility that homosexual men and women might attain a marriage license in Hawaii and that their home states would have to recognize the unions’ legality under the Full Faith and Credit Clause was too much for Congress to bear. DOMA easily passed through both the House and Senate and was signed into law by President Bill Clinton.[7]

The legislative record illustrates Congress’ judgments about the definition of marriage and the morality behind it.  Some members of Congress firmly believed that marriage could only be between a man and a woman.  For instance, Representative Barr remarked that “[M]arriage throughout the entire history of not only our civilization but Western civilization has meant the legal union between one man and one woman.”[8] Others emphasized that the homosexual marriage question was a moral one, and that such marriages were morally wrong.  Representative Hoke remarked:

One of the things that was said during the debate that I think is probably the most preposterous . . .  is that Congress has no business legislating morality . . . The fact is that we legislate morality on a daily basis. It is through the law that we as a nation express the morals and the moral sensibilities of the United States, and what is morality except to decide what is right and what is wrong? That is what morality is all about.[9]

Continue reading “The Fate of the Marital Union: Is DOMA Approaching Its Last Day?”

Overriding Broad Public Use in the Face of Bad Faith Blight: In re Parminder Kaur and Redeveloping Eminent Domain in New York State

Robert Barrows, Albany Government Law Review Editor-in-Chief


            In 2005, the United States Supreme Court held in a controversial decision that the clearing and transfer of private property to a private developer for the purpose of economic redevelopment was a “public use” under the Takings Clause of the Fifth Amendment.[1]  The holding in Kelo v. City of New London not only outraged certain members of the Court[2], it also prompted forty-three states to pass legislation restricting the use of eminent domain.[3]  Although efforts were made to reform the state’s condemnation procedures, New York is not one of the forty-three.[4]  In the last eight months, however, New York courts have issued two decisions with strong implications for the state’s eminent domain powers.  In Matter of Goldstein v. N.Y.S. Urban Development Corp., the New York Court of Appeals endorsed the use of eminent domain to remove blighted properties in the Atlantic Yards neighborhood of Brooklyn for the development of a new arena for the New Jersey Nets as well as luxury apartments and office space.[5]  Decided within two weeks of Goldstein was In re Parminder Kaur v. N.Y.S. Urban Development Corp., where the First Department, in a complete turnaround from the Court of Appeals, sided with private property owners in the Manhattanville section of West Harlem who were fighting the City’s decision to use eminent domain for the purpose of expanding Columbia University’s campus.[6]  The court held that the taking was unconstitutional and failed to meet the state constitution’s “public use” requirement.[7]  The Court of Appeals will hear arguments for In re Parminder Kaur, in the beginning of June, and many land-use experts believe it will be overturned based on the logic employed in Goldstein.[8]  In re Parminder Kaur, however, could be the long invoked hypothetical case by the Court of Appeals that would justify a judicial halt to the condemnation proceedings even if the taking meets constitutional mandates.

The Law and The Kaskel Hypothetical 

          Reminiscent of the Fifth Amendment, the New York Constitution provides that “private property [shall not] be taken for public use, without just compensation.”[9]  Consistent with the Supreme Court’s decision in Berman v. Parker, the state has deemed blight removal, slum clearance, and redevelopment as public uses that would trigger eminent domain.[10]  The general test for whether private property is blighted is if the area is “substandard or insanitary”[11] and is determined by an objective study statutorily performed by the Empire State Development Corporation (ESDC), a state entity that liaises between the government and developers.[12]

Continue reading “Overriding Broad Public Use in the Face of Bad Faith Blight: In re Parminder Kaur and Redeveloping Eminent Domain in New York State”

Judge McConnell of the Tenth Circuit Offers the Edwin Sabota ’79 Memorial Lecture

Robert Magee, Staff Writer,

     The second day of the symposium began in the Dean Alexander Moot Courtroom at Albany Law School with the Edward C. Sebota ’79 Memorial Lecture, delivered by the Honorable Michael McConnell of the 10th Circuit Court of Appeals.  He presented an overview of the judicial interpretation of the Free Exercise Clause as compared to similar interpretations of the Free Speech clause. He further explored the Supreme Court’s historical treatment of these protections and explained why and how and the Religious Land Use and Institutionalized Persons Act (RLUIPA) (1) came to be.

    After graduating from the University of Chicago Law School in 1979, Judge McConnell clerked for Judge James Skelly Wright of the D.C. Circuit and then Justice Brennan of the U.S. Supreme Court, from 1980-1981. He went on to teach at his alma mater and then the University of Utah college of law, where he teaches to this day. (2) 

     Judge McConnell was appointed to the 10th Circuit in September of 2001.  While sitting on the bench Michael McConnell has authored three opinions which have come before the Supreme Court which have been adopted by the Court. (3) Continue reading “Judge McConnell of the Tenth Circuit Offers the Edwin Sabota ’79 Memorial Lecture”

Chief Justice Randall T. Shepard of the Indiana Supreme Court Offers His Keynote Address: Defining Community in a Society Founded on Rights

Robert Magee, Staff Writer, & Steven Sharp, Staff Writer,

     The Albany Government Law Review Symposium: God and the Land commenced in Room 200 on the second floor of Albany Law School. Among the standing-room only crowd, most of whom were students, were a number of preeminent legal thinkers, including President William McKinley Distinguished Professor of Law and Public Policy and Senior Fellow, Government Law Center Paul Finkelman of Albany Law School, Raymond and Ella Smith Professor of Law, Associate Dean, and Director of the Albany Government Law Center Patricia Salkin of Albany Law School and the Honorable Judge Victoria A. Graffeo of the New York Court of Appeals. 

    The evening’s speaker, Chief Justice Randall T. Shepard of the Indiana Supreme Court, was introduced by Professor Stephen Clark of Albany Law School.  Prof. Clark clerked for Chief Judge Shepard from 1995 to 1996 and prepared the hall for his former mentor with a few anecdotes about Chief Justice Shepard’s committment to open government and democratic reform.  C.J. Shepard, Prof. Clark stressed, is a proud seventh generation “Hoosier.”  In particular, he product of the rough-and-tumble foundation of Indiana’s frontier society.  This even-headed approach to circumstances which would turn the hardest stomachs was perhaps the best way, Prof. Clark opined, to approach an understanding of C.J. Shepard’s understanding of the Constitution.     Continue reading “Chief Justice Randall T. Shepard of the Indiana Supreme Court Offers His Keynote Address: Defining Community in a Society Founded on Rights”