I was reading about the SCOTUS decision on DOMA, and it said that they invoked the 5th amendment, which states: nor be deprived of life, liberty, or property, without due process of law.

I would have thought that since DOMA was a law, it underwent due process. How can SCOTUS declare any law unconstitutional under this clause?

  • 2
  • I don't think a previous incident of "due process of law" negates any future "due processes of law"...after all, isn't that exactly what the appellate court system is?
    – user1530
    Jun 26, 2013 at 23:36
  • due process in the fifth amendment has been expanded to include equal protection, the reasoning is provided in my answer here
    – Ryathal
    Jun 27, 2013 at 13:51

2 Answers 2


The idea is that liberty and property are being denied to gay couples that is protected for traditional couples.

Liberty in that they are not guaranteed rights that are available to traditional couples specifically to enter into a union and get the protections and privileges that the union provides.

Property in that there are tax and other governmental advantages available to traditional couples that are not available to non-traditional couples.

These are being denied with out any ability of the people being harmed to challenge the decision in court. That is where the 5th amendment comes into play.

  • This answer presupposes the correctness of the ruling, which the OP is potentially challenging. An unsubstantiated claim in this case is that they are being "harmed" by not being granted privileges, which is a different matter than being denied any actual rights. None of their extant life, liberty or property was jeopardized under the DOMA.
    – pygosceles
    Aug 15, 2019 at 18:59

Since Bolling v. Sharpe, a Supreme Court decisions that came out the same day as Brown v. Board of Education, the 5th amendment's Due Process clause has been interpreted by the courts to also imply a guarantee of equal protection under federal law. The 14th amendment also guarantees equal protection, but only under state law. As there was such amendment explicitly guaranteeing equal protection for the federal government, the courts ruled that due process necessitated equal treatment. In the DOMA case, a law treating homosexual marriages differently from heterosexual marriages constituted discrimination and unequal treatment of homosexuals and heterosexuals under the law.

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