There is something appealing—even romantic—about the Justice’s legal vision, demarcating as it does intimate worlds and dignified individuals threatened by a distant bureaucracy. But—at least since the Civil War—Americans are citizens of the nation first, and creatures of a national legal culture. For better and worse, in times of war and peace, this culture shapes their bodies and minds, their moral views and life choices. The problem with DOMA is not that it is a powerful regulation of sexuality, but that it is an unfair one. In questioning Solicitor General Donald Verrilli about the federal government’s authority to pass DOMA, Chief Justice Roberts recognized the complex relationship between sex and public power: “you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say ‘marriage’ in Federal law, we mean committed same-sex couples as well, and that could apply across the board.” Verrilli replied in the affirmative, and someday soon, the nation—whether through Congress or the Court—will hopefully “go the other way.”
more from Jeremy K. Kessler at n+1 here.