Same-sex couple rights are the topic of much discussion and debate. There are court challenges to the constitutionality of the Defense of Marriage Act (“DOMA”) as well as proposed marriage statutes. The message and the structure for the recognition of same-sex rights need to be modified. This Article proposes applying, for the first time in the area, modern sociology theory, specifically Diffusion Theory, to change how the message is delivered. Using Diffusion Theory to change the message frame will change judicial decisions. By using the backdrop of the Florida adoption statute, a comparison between the successful challenges to the Florida statute is made to the current challenges to DOMA. This challenge shows how, through the Diffusion lens, same-sex couples were able to change judicial opinion through empathy.
David J. Herzig, DOMA and Diffusion Theory: Ending Animus Legislation through a Rational Basis Approach, 44 Akron L. Rev. 621 (2011).