This is a message to those who think an exclusionary definition of marriage based on your own personal presuppositions is a viable constitutional, legal, or philosophical argument.
You have a premise, that DOMA defines for federal purposes marriage as a man and a woman (this is not a universal definition, it just means that the only marriages it will recognise are monogomous heterosexual ones, it does not, and cannot state that marriage universally must be monogomous heterosexual because it does not have the power to change the universe).
However even if there were not 12 states and DC who have an non-exclusive legal definition of monogomous marriage, it would still be viable to challenge DOMA on the grounds that there is still no rational basis for the exclusionary heterosexual requirement, and given that there are 10 common forms of monogomous marriage in the 21st century.
- 1 man + 1 woman who are too old to have genetic offspring.
- 1 man + 1 woman who are infertile (and always have been).
- 1 man + 1 woman who choose not to have children
- 1 man + 1 woman who can and do have genetic children.
- 1 man + 1 man who cannot have genetic children.
- 1 man + 1 man who can, but do not have genetic children.
- 1 man + 1 man who can and do have genetic children.
- 1 woman + 1 woman who cannot have genetic children.
- 1 woman + 1 woman who can, but do not have genetic children.
- 1 woman + 1 woman who can, and do have genetic children.
If you want to apply an exclusionary principle, you have to give a rational basis for why the first 4 definitions get the rights, recognition and responsibilities of marriage, when the bottom 6 do not.
If its for reproduction, then the top 3 fail to make the cut, and 7 and 10 do make the cut.
If its for functionality, then what is measurably different between 1, 2 and 3, AND 5, 6, 8 and 9 ?
The only basis you have is your presupposition that may have been consensus in the past, but certainly is far from consensus in anthropology, psychology, philosophy, theology, sociology, and society, and that is not a rational basis argument for exclusion.
DOMA fails because it denies equal protection for all married couples, and is law, not amendment and so must go up against the 14th amendment which eviscerates it.
I realise I haven’t talked about more complex relationship forms, I wanted to focus just on the issue at hand, of equality for monogamous couples…which isn’t exactly my issue, but still something I consider vitally important.