# Constitutionality of Defense of Marriage Act **URL:** \ **Category:** Factual Questions\ **Created:** [October 21, 2009, 2:22pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603 "2009-10-21T14:22:16Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [October 21, 2009, 2:22pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/1 "2009-10-21T14:22:16Z")
This may turn into a debate, but I thought I’d start it here. I don’t understand how the portion of the Defense of Marriage Act which permits states to refuse to acknowledge gay marriages satisfies the Full Faith and Credit clause. I could do the legal research myself - and will carry the ball if anyone would be so kind as to point me in a fruitful direction. But it just seems to me like this should be pretty fertile grounds for a stronger legal challenge than I have perceived being mounted of late. Note: I’m not questioning whether the DMA is or is not good policy - just see it as pretty plainly inconsistent with the Constitution, and curious what I am missing. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 21, 2009, 2:53pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/2 "2009-10-21T14:53:01Z")
Disclaimer: I myself believe it is unconstitutional, and a truly horrible precedent. However, those who argue for its constitutionality claim that Congress had power to pass it under the Uniform Standard clause in Article IV, Section One (home of the Full Faith and Credit clause), and that it carves out an exception to FF&C using the “public policy exception.” (Don’t get me started on the latter topic.) ---
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [October 21, 2009, 3:08pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/3 "2009-10-21T15:08:49Z")
I believe the Supreme Court will eventually be asked to rule on it. People have already filed suits that are winding their way through the courts. ---
**Author:** ![pan1](https://avatars.discourse-cdn.com/v4/letter/p/e495f1/32.png) [@pan1](https://boards.straightdope.com/u/pan1)\ **Post date:** [October 21, 2009, 3:22pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/4 "2009-10-21T15:22:27Z")
The Department of Justict says its constitutional - but it’s their job to defend the laws. Current trends have it being moot in less than 20 years. The population is becoming less religious and more accepting of the differences in people. It really comes down to: Where will Kennedy stand? ---
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [October 21, 2009, 4:02pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/5 "2009-10-21T16:02:30Z")
> [@Bijou\_Drains](#): > > I believe the Supreme Court will eventually be asked to rule on it. People have already filed suits that are winding their way through the courts. I know the legal system operates slowly, but this thing is 13 years old! :rolleyes: ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [October 21, 2009, 4:04pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/6 "2009-10-21T16:04:51Z")
If you are a strict constructionist, you are correct, it isn’t Constitutional. If you are a “living document” type, the Constitution says whatever a majority of the Supreme Court says it says, and the text of the Constitution doesn’t enter into it. Regards, Shodan ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [October 21, 2009, 4:07pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/7 "2009-10-21T16:07:22Z")
Here’s a past thread that touches on a very similar topic: [Link](http://boards.straightdope.com/sdmb/showthread.php?t=244487) ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [October 21, 2009, 4:37pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/8 "2009-10-21T16:37:57Z")
> [@Dinsdale](#): > > I know the legal system operates slowly, but this thing is 13 years old! :rolleyes: Yeah, but there was no one with standing until there were legal same sex marriages being performed in one state, which according to Wikipedia first happened just five years ago in Mass. Then you’ve got to move to another state, then try to do something that married people can do and be denied, then go through several levels of courts. I’m sure there are numerous test cases making their way through as we speak, but five years really isn’t that long a time. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 21, 2009, 4:43pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/9 "2009-10-21T16:43:57Z")
> [@](#): > > I know the legal system operates slowly, but this thing is 13 years old! The people who want to have this law declared unconstituional are also facing the reality that the court we’ve had for the last thirteen years probably wouldn’t do that. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 21, 2009, 4:51pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/10 "2009-10-21T16:51:38Z")
> [@Shodan](#): > > If you are a strict constructionist, you are correct, it isn’t Constitutional. If you are a “living document” type, the Constitution says whatever a majority of the Supreme Court says it says, and the text of the Constitution doesn’t enter into it. > > Regards, > Shodan With all due respect, sir, your opinion of what other people’s constitutional thinking might be (in which you are in error) is not grist for GQ. Typically, “living constitutionalists” found their thinking on Marshall’s maxim, “We must never forget that it is a Constitution which we are expounding.” They believe that the broad language of some sections, such as “necessary and proper,” “equal protection of the laws,” “full faith and credit,” “due process of law”, “unreasonable search and seizure”, and “cruel and unusual punishment”, are there for good reason – because the writers o those sections wanted to make the Constitution flexible and broad enough to deal with changing times and places. As I’ve pointed out, a thoroughgoing strict constuctionist would be forced to find the U.S. Air Force unconstitutional, as, while the constitution says that Congress must provide for the general defense, it allows for this by enabling it to raise an Army and build, equip, and staff a Navy. There is no constitutional provision equipping it to build, equip, and staff an Air Force; assuming that “the general defense” enables Congress to create one is “living constitutionalism” – it’s throwing an interpretation on the terms based on changes in society since 1789. Likewise, a court determining an Eighth Amendment challenge to a sentence does not ask, “What was cruel and unusual punishment in 1789?”, but rather “What does the term mean in today’s world?” It needs to be guided both by the text of the constitution and precedents, and by what the explicit words of the constitution have come to mean in two-plus centuries since it was written. The issue here is whether two people, marrid under the laws of state A, should be recognized as married under the laws of state B. Precedent prior to 1996 said unanimously that they should. Faced with the potential that a state might make gay marriages legal, Congress carved out an exception. The question is whether they wer constitutionally empowered to do so, and if so, where this empowerment may be found. ---
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [October 21, 2009, 4:51pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/11 "2009-10-21T16:51:44Z")
The next justice to retire is likely Stevens so Obama replacing him also won’t change the makeup of the court. The Conservatives will probably try to wait out Obama before they step down. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 21, 2009, 4:51pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/12 "2009-10-21T16:51:54Z")
> [@](#): > > If you are a strict constructionist, you are correct, it isn’t Constitutional. If you are a “living document” type, the Constitution says whatever a majority of the Supreme Court says it says, and the text of the Constitution doesn’t enter into it. Please. A “strict constructionist” is a myth - there’s no such thing. Every justice interprets what the words of the constitution mean. Otherwise the 2nd amendment would only protect the right to own muskets and the 1st amendment wouldn’t cover Mormons or television. ---
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [October 21, 2009, 5:07pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/13 "2009-10-21T17:07:18Z")
For some reason I don’t imagine the “strict constructionists” currently among the Supremes all that excited over the prospect of ruling DMA unconstitutional! 😛 But I agree, this strays beyond GQ where I posted this. Thanks for the links, folks. I gots my reading to do. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [October 21, 2009, 5:13pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/14 "2009-10-21T17:13:26Z")
> [@Polycarp](#): > > The issue here is whether two people, marrid under the laws of state A, should be recognized as married under the laws of state B. Precedent prior to 1996 said unanimously that they should. I’m not sure I agree with this history. In law school in the early ‘90s, we were taught that a public policy exception to recognizing other states’ marriages clearly existed, at least in theory. In practice, determining what would fall within the public policy exception was vague, but same-sex marriage was cited as a likely hypothetical. I do not remember seeing cases in which one state’s refusal to recognize another’s marriage on public-policy grounds was overturned via the full faith and credit clause, but it’s been a long time. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [October 21, 2009, 6:26pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/15 "2009-10-21T18:26:40Z")
> [@Tom\_Tildrum](#): > > I’m not sure I agree with this history. In law school in the early ‘90s, we were taught that a public policy exception to recognizing other states’ marriages clearly existed, at least in theory. In practice, determining what would fall within the public policy exception was vague, but same-sex marriage was cited as a likely hypothetical. I do not remember seeing cases in which one state’s refusal to recognize another’s marriage on public-policy grounds was overturned via the full faith and credit clause, but it’s been a long time. The most obvious type of cases I can think of would be a state’s ban on interracial marriage or the marriage of first cousins. There must have been mixed marriage couples or married cousins that moved from a state where it was allowed to a state where it was banned in the past. Were any of those litigated? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 22, 2009, 12:41am UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/16 "2009-10-22T00:41:37Z")
> [@Tom\_Tildrum](#): > > I’m not sure I agree with this history. In law school in the early ‘90s, we were taught that a public policy exception to recognizing other states’ marriages clearly existed, at least in theory. In practice, determining what would fall within the public policy exception was vague, but same-sex marriage was cited as a likely hypothetical. I do not remember seeing cases in which one state’s refusal to recognize another’s marriage on public-policy grounds was overturned via the full faith and credit clause, but it’s been a long time. No argument with what you discussed at law school – I’d completely vconcur, and I’m sure so would the Dopers-at-law, unanimously – but my point was that I am not aware of any precedent for a state refusing recognition of a marriage contracted in another state (meaning constituent state of the U.S.A., not Mexico, Swaziland, or something). I’m of course open to being proven wrong. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [October 22, 2009, 4:32am UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/17 "2009-10-22T04:32:50Z")
> [@Polycarp](#): > > No argument with what you discussed at law school – I’d completely vconcur, and I’m sure so would the Dopers-at-law, unanimously – but my point was that I am not aware of any precedent for a state refusing recognition of a marriage contracted in another state (meaning constituent state of the U.S.A., not Mexico, Swaziland, or something). I’m of course open to being proven wrong. Well, OK, but it seems to me that there isn’t much legal weight behind the idea that there was no precedent for one state refusing another’s same-sex marriage – at a time when there was no same-sex marriage in any state. (Just like there’s not much content to my assertion that there was no precedent for a state’s assertion of the public-policy exception being overturned, when no state had ever asserted the public-policy exception). It’s like looking to ancient Rome as precedent for a society with no gun-control laws. I think we both agree that even pre-DOMA, the law recognized at least the theory of a public-policy exception under which State B could refuse to recognize some subset of State A’s marriage. It’s my view that pre-DOMA, if State A had legalized gay marriage and State B had refused to recognize those marriages, that refusal would have been upheld by the Supreme Court as constitutional, as a paradigmatic exercise of that public-policy exception.\* I agree that Congress was worried that the Court would rule otherwise, but back then, in the days of _Bowers v. Hardwick_, I don’t think that was a valid concern. - I certainly don’t mean to say that that’s a just or desirable result; I’m only addressing constitutionality. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 22, 2009, 5:43am UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/18 "2009-10-22T05:43:31Z")
One of the ruling principles in regards to marriage and comity before the whole gay marriage thing and the big case was In Re May’s Estate, which was a New York case from 1953. It involved an uncle and niece from New York who went to Rhode Island to marry, because New York didn’t recognize uncle-niece marriage and Rhode Island did. They then moved back to New York and lived together for 30 years until she died, and in the execution of her estate, the question came up as to whether she was legally married. The issue raised at the New York Court of Appeals (which, btw, is New York State’s highest court) was “Is the legality of a marriage between persons sui juris to be determined by the law of the place it is celebrated?”, and the decision was: > [@](#): > > Although our statute declares a marriage between an uncle and niece to be void, our statute does not state that we cannot recognize such a relationship that is valid in another state. We should not extend the statute’s scope to by judicial construction. Now that opens the possibility that the state could pass a statute explicitly forbidding recognition of such a marriage, but if they don’t do so, there’s a presumption of validity, even if such a marriage couldn’t legally be conducted in the state. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [October 22, 2009, 3:35pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/19 "2009-10-22T15:35:06Z")
> [@Captain\_Amazing](#): > > Now that opens the possibility that the state could pass a statute explicitly forbidding recognition of such a marriage, but if they don’t do so, there’s a presumption of validity, even if such a marriage couldn’t legally be conducted in the state. I am not a lawyer. But it seems to me that a decision that is passed by a New York court in interpreting New York law, should not be used to bind any other state into the same interpretation automatically. I can agree that it might be used to ask a different state to reexamine _their_ law-equivalent, but it is not binding automatically. Did I just misunderstand the quoted paragraph? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 22, 2009, 4:17pm UTC](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603/20 "2009-10-22T16:17:03Z")
No, it’s not binding anywhere else than New York, but it’s representative of the way that courts viewed marriage comity. [Next page](https://boards.straightdope.com/t/constitutionality-of-defense-of-marriage-act/514603.md?page=2)