Polycarp
03-22-2002, 04:03 PM
I am strenuously opposed to the Defense of Marriage Act, not merely because I believe that gay people should have the right to marry those they fall in love with the same as straight people do, but because I consider it the most egregious violation of constitutional provisions since Marbury v. Madison established constitutional supremacy over statute in 1803.
The following quotations are taken from the 'Lectric Law Library at http://www.lectlaw.com/files/leg23.htm :
Text of the law:
104th CONGRESS 2D SESSION
H.R. 3396
IN THE HOUSE OF REPRESENTATIVES
Mr. BARR of Georgia (for himself, Mr. LARGENT, Mr. SENSENBRENNER, Ms.
MYRICK, Mr. VOLKMER, Mr. SKELTON, Mr. BRYANT, and Mr. EMERSON)
introduced the following bill, which was referred to the Committee
on_____________
A BILL
To define and protect the institution of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL. -- Chapter 115 of title 28, United States Code, is
amended by adding after section 1738B the following:
Section 1738C. Certain acts, records, and proceedings and the effect thereof
"No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such
relationship."
(b) CLERICAL AMENDMENT. -- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: "1738C. Certain acts, records, and proceedings and the effect thereof."
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL. -- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
"Section 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only 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."
(b) CLERICAL AMENDMENT. -- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
"7. Definition of 'marriage' and 'spouse'."
The legislative Summary and Analysis:
The Defense of Marriage Act (DOMA) does two things. First, it provides that no State shall be required to give effect to a law of any other State with respect to a same-sex "marriage." Second, it defines the words "marriage" and "spouse" for purposes of Federal law.
The first substantive section of the bill is an exercise of Congress'
power under the "Effect" clause of Article IV, section 1 of the
Constitution (the Full Faith and Credit Clause) to allow each State (or other political jurisdiction) to decide for itself whether it wants to grant legal status to same-sex "marriage." This provision is necessary in light of the possibility of Hawaii giving sanction to same-sex "marriage" under its state law, as interpreted by its state courts, and other states being placed in the position of having to give "full faith and credit" to Hawaii's interpretation of what constitutes "marriage." Although so-called "conflicts of law" principles do not necessarily compel such a result, approximately 30 states of the union are sufficiently alarmed by such a prospect to have initiated legislative efforts to defend themselves against any compulsion to acknowledge same-sex "marriage."
This is a problem most properly resolved by invoking Congress' authority under the Constitution to declare what "effect" one State's acts, records, and judicial proceedings shall have in another State. Congress has invoked this authority recently on two other occasions; in the Parental Kidnaping Prevention Act of 1980, which required each State to enforce child custody determinations made by the home State if made consistently with the provisions of the Act; and in the Full Faith and Credit for child Support Order Act of 1994, which required each State to enforce child support orders made by the child's State if made consistently with the provisions of the Act.
The second substantive section of the bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as usband and wife, and a spouse is a husband or wife of the opposite sex. The DOMA definition of marriage is derived most immediately from a Washington state case from 1974, Singer v. Hara, which is included in the 1990 edition of Black's Law Dictionary. More than a century ago, the U.S. Supreme Court spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15, 45
(1985).
DOMA is not meant to affect the definition of "spouse" (which under the Social Security law, for example, runs to dozens of lines). It ensures that whatever definition of "spouse" may be used in Federal law, the word refers only to a person of the opposite sex.
In my opinion, Section 2 of this Act differs from the other actions Congress has taken under Article 4, Section 1 of the Constitution in that they mandate a specific level of performance in the "giving of full faith and credit" to the acts of other states. This requirement, that each state give full faith and credit to the acts, records, and judicial proceedings of all other states, appears to me to place an affirmative duty on the individual states to do so, a duty mandated by the Constitution. What Congress is empowered to do as regards this is:
Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
In other words, Congress can pass a law saying how one proves to a court in Oregon that a court in Massachusetts ruled in your favor in a case on all fours with the one you're pursuing in Oregon, or that you were duly married under Nebraska law, or inherited all the property of your Uncle Frank under a will probated in Illinois, and what effect making such a proof should have on the Oregon court's proceedings.
It does not, IMHO, enable Congress to excuse the states from their constitutional mandate to give full faith and credit to the actions of another state's legally constituted governmental organs, including its courts and those it licenses to perform marriages and civil unions. To cite good old Marbury v. Madison, the Supreme Court is not enabled to issue writs of mandamus on petitions by a citizen applying to its original jurisdiction, despite the provisions of the Judiciary Act of 1789 that say it can, because the Constitution specifies what its original jurisdiction amounts to, and Congress cannot authorize it to have a larger one than the Constitution gives it. By the same token, in my view, the states are obligated to give full faith and credit to the acts of the other states, including any civil unions entered into pursuant to their laws, and Congress cannot excuse them from doing so, any more than it can authorize the Supreme Court to do something other than what the Constitution allows it to do.
It's my hope that we not debate whether or not gay marriages or civil unions are a good idea in this thread, but restrict it to whether or not Congress was acting unconstitutionally in passing it, and what can be done about that if it was.
The following quotations are taken from the 'Lectric Law Library at http://www.lectlaw.com/files/leg23.htm :
Text of the law:
104th CONGRESS 2D SESSION
H.R. 3396
IN THE HOUSE OF REPRESENTATIVES
Mr. BARR of Georgia (for himself, Mr. LARGENT, Mr. SENSENBRENNER, Ms.
MYRICK, Mr. VOLKMER, Mr. SKELTON, Mr. BRYANT, and Mr. EMERSON)
introduced the following bill, which was referred to the Committee
on_____________
A BILL
To define and protect the institution of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL. -- Chapter 115 of title 28, United States Code, is
amended by adding after section 1738B the following:
Section 1738C. Certain acts, records, and proceedings and the effect thereof
"No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such
relationship."
(b) CLERICAL AMENDMENT. -- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: "1738C. Certain acts, records, and proceedings and the effect thereof."
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL. -- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
"Section 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only 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."
(b) CLERICAL AMENDMENT. -- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
"7. Definition of 'marriage' and 'spouse'."
The legislative Summary and Analysis:
The Defense of Marriage Act (DOMA) does two things. First, it provides that no State shall be required to give effect to a law of any other State with respect to a same-sex "marriage." Second, it defines the words "marriage" and "spouse" for purposes of Federal law.
The first substantive section of the bill is an exercise of Congress'
power under the "Effect" clause of Article IV, section 1 of the
Constitution (the Full Faith and Credit Clause) to allow each State (or other political jurisdiction) to decide for itself whether it wants to grant legal status to same-sex "marriage." This provision is necessary in light of the possibility of Hawaii giving sanction to same-sex "marriage" under its state law, as interpreted by its state courts, and other states being placed in the position of having to give "full faith and credit" to Hawaii's interpretation of what constitutes "marriage." Although so-called "conflicts of law" principles do not necessarily compel such a result, approximately 30 states of the union are sufficiently alarmed by such a prospect to have initiated legislative efforts to defend themselves against any compulsion to acknowledge same-sex "marriage."
This is a problem most properly resolved by invoking Congress' authority under the Constitution to declare what "effect" one State's acts, records, and judicial proceedings shall have in another State. Congress has invoked this authority recently on two other occasions; in the Parental Kidnaping Prevention Act of 1980, which required each State to enforce child custody determinations made by the home State if made consistently with the provisions of the Act; and in the Full Faith and Credit for child Support Order Act of 1994, which required each State to enforce child support orders made by the child's State if made consistently with the provisions of the Act.
The second substantive section of the bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as usband and wife, and a spouse is a husband or wife of the opposite sex. The DOMA definition of marriage is derived most immediately from a Washington state case from 1974, Singer v. Hara, which is included in the 1990 edition of Black's Law Dictionary. More than a century ago, the U.S. Supreme Court spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15, 45
(1985).
DOMA is not meant to affect the definition of "spouse" (which under the Social Security law, for example, runs to dozens of lines). It ensures that whatever definition of "spouse" may be used in Federal law, the word refers only to a person of the opposite sex.
In my opinion, Section 2 of this Act differs from the other actions Congress has taken under Article 4, Section 1 of the Constitution in that they mandate a specific level of performance in the "giving of full faith and credit" to the acts of other states. This requirement, that each state give full faith and credit to the acts, records, and judicial proceedings of all other states, appears to me to place an affirmative duty on the individual states to do so, a duty mandated by the Constitution. What Congress is empowered to do as regards this is:
Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
In other words, Congress can pass a law saying how one proves to a court in Oregon that a court in Massachusetts ruled in your favor in a case on all fours with the one you're pursuing in Oregon, or that you were duly married under Nebraska law, or inherited all the property of your Uncle Frank under a will probated in Illinois, and what effect making such a proof should have on the Oregon court's proceedings.
It does not, IMHO, enable Congress to excuse the states from their constitutional mandate to give full faith and credit to the actions of another state's legally constituted governmental organs, including its courts and those it licenses to perform marriages and civil unions. To cite good old Marbury v. Madison, the Supreme Court is not enabled to issue writs of mandamus on petitions by a citizen applying to its original jurisdiction, despite the provisions of the Judiciary Act of 1789 that say it can, because the Constitution specifies what its original jurisdiction amounts to, and Congress cannot authorize it to have a larger one than the Constitution gives it. By the same token, in my view, the states are obligated to give full faith and credit to the acts of the other states, including any civil unions entered into pursuant to their laws, and Congress cannot excuse them from doing so, any more than it can authorize the Supreme Court to do something other than what the Constitution allows it to do.
It's my hope that we not debate whether or not gay marriages or civil unions are a good idea in this thread, but restrict it to whether or not Congress was acting unconstitutionally in passing it, and what can be done about that if it was.