Is DOMA Constitutional?

Great Debates
1

As Swimmingriddles reports, there is a reasonably strong likelihood that Vermont will legalize gay marriages. The state government is under order from the State Supreme Court to enact a state law which would grant all the benefits available to married couples to registered gay couples, based on the state constitution. Their only options are to amend the constitution or adopt that law. The court declined to declare gay marriages legal, indicating that was a matter for the legislature to decide.

Needless to say, there has been strong lobbying from both sides of the issue. Press reports I have read indicate that many Vermont legislators have taken the point of view that (1) people from outside Vermont are not going to tell them what to do, and (2) being required to grant all benefits, why not go whole hog and allow marriages as well. (Swimmingriddles may have more background information on this.)

Now, make the presumption that the legislature does do so. Then make the presumption that some gay couples will go to Vermont, establish legal residence, and marry. Now, assume that a few of these decide to move elsewhere and, when their marriage is not recognized, sue in Federal court for its recognition.

Under the Defense of Marriage Act, no state is compelled to give recognition to such a marriage, despite the provisions of Article IV of the Constitution. However, that Article requires each state to give “full faith and credit” to another state’s legal actions, which is why Nevada divorces are legal throughout the U.S. Congress is only permitted to set the provisions under which such “full faith and credit” is to be given (i.e., a uniform standard for the country).

IMHO, the Defense of Marriage Act serves to totally negate the “full faith and credit” requirement as regards the Vermont law which in my basic hypothesis has been passed, and is therefore not a valid exercise of Congress’s Article IV power to set standards for the giving of full faith and credit. It would therefore be unconstitutional.

This sounds like a truly good Great Debate topic. The potential of strict constructionists arguing on the same side as gay activists fascinates my taste for irony.

What do you think?

2

I think if Vermont passes a law allowing same sex marriages, it’ll be a sprint to see who can file the suits challenging the Defense of Marriage Act as completely unconstitutional first. The courts will most likely strike down DOMA, and then we’ll hear a lot of squawking about making DOMA an ammendment so that it can pass Constitutionality muster.

3

U.S. Constitution, Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be Proved, and the Effect thereof.”

Seems clear to me: the DOMA is unconstitutional. And IMHO, the likelihood of a Constitutional amendment codifying the DOMA is vanishingly small. Even if it got through Congress (where it would need 2/3 majorities in both houses), only 13 state legislatures would need to defeat it, or simply fail to take action on it, to block it.

My Jesus fish and my Darwin fish get along fine, thank you.

4

I think most constitutional experts have been saying all along its unconstitutional, but until there is a test case, it will stay on the books; therefore, if same sex marriages are granted in Vermont, you’re right - it’ll be a photo finish over who files their briefing first. DOMA will not stand up, and I don’t see states overthrowing full faith and credit (ultimately, it works very well for them all).

Relatedly, I wonder how the details will work out for all the state-sponsored DOMA siblings, such as the Knight Initiative in California coming up for a vote. Despite having it passed in Washington, many states have voted on and enacted their own versions of DOMA (well, specifically, that marriages in their states are defined as one man and one woman).

Personally, I’d love to see Vermont pass domestic partner legislation instead, then watch it get shot down as unconstitutionally “seperate but equal,” and then watch the fireworks when DOMA crashes and burns. Ought to be quite a spectacle…

Esprix

Next time I want your opinion I’ll beat it out of you.

5

This issue was debated somewhat in this prior thread: http://www.straightdope.com/ubb/Forum3/HTML/003079.html

My conclusion about the status of gay marriages at the time was that the USSC would initially not require states to accept them as legally valid outside of whatever state first adopts them, but that, with time, they would eventually be given legitimacy nation-wide. Please read my reasonably extensive analysis of why the full faith and credit clause does NOT require every state to make anything any other state does valid within its own borders. :slight_smile:

As to the DOMA, to the extent that it purports to establish the duties of the states under the Constitution, it will be ignored by the USSC. Congress can do many things, but it can’t say what the Constitution requires. :slight_smile:

6

Hmmm… If a prostitute and a gentleman sign a contract for sex in Nevada, is California required to allow them to execute it within its borders? I’m curious why marriage is treated differently. What am I missing?

“Give a man a fire and he’s warm for a day… Set a man on fire and he’s warm for a lifetime.”

7

phouka wrote:

When Hawaii passed a law permitting same-sex marriages, the new law was immediately challenged as being in violation of the Hawaii Constitution.

My guess is the same thing would happen in Vermont. There will be suits challenging a law as unconstitutional, all right – but it’ll be the Vermont law allowing gay marriage, not the DOMA, that’ll be under attack.

The truth, as always, is more complicated than that.

8

The Defense of Marriage Act is - at its core - codified, religion-inspired homophobia. Its application to group marriages may be incidental, or it may be that the supporters thought that was an equally large “threat” (I kinda doubt it), but that also is at root religion-inspired. There is a basic “cultural status quo” element to it as well, but that too derives ultimately from recent Western religious values (last couple of thousand years).

Those of you who think a DOM Amendment would never pass would seem to be suggesting that “separation of Church and State” values will overcome homophobia in the national ‘mind’ - to which I would say only, “You may be quite right, but never underestimate American homophobia.” Also, don’t underestimate the effectiveness of a dedicated and focused group working in an atmosphere of apathy.

If it ever did come down to a state by state battle, supporters of equality had better be prepared to WIN the vote in 14 states. “Failing to take action” only means that the Amendment is alive to be passed 10, or 120, years later, doesn’t it?

9

Tracer, I don’t have the full background on this, but IIRC, what happened in Hawaii is that the state constitution did not permit discrimination on the basis of sex, more or less (someone with access to Lexus or Westlaw can post the precise grounds), and it was held that the marriage law was invalid because it did so discriminate, i.e., it required one of each sex. The constitution was then amended to include whatever language is necessary to make the old law valid; the courts then ruled that the old law, being no longer contrary to the state constitution, was now valid.

Why would you think the Vermont law would be unconstitutional (state or federal)? Not being an expert on Vermont (or any other) law, I can’t speak to the question, but I would assume that the question has at least come up if there is a law under consideration.

10

In the GQ thread, DSYoung said:

Seems to me that if those same principles were applied to a hypothetical legalization of gay marriage in Vermont, (1) Vermont would be allowed to legally marry a gay couple based on its own residency/domicile laws; (2) the Vermont marriage would have to be recognized by other states, so long as the parties had been legally domiciled in Vermont when married there; and (3) the other states wouldn’t have to accord all the benefits and privileges of heterosexual marriages to gay couples married in Vermont.

Still, that would be a hell of a step forward. For instance, one gay spouse would be recognized as next of kin while the other was dying or mentally incapacitated; at present, a family that wants to keep the ‘spouse’ from their gay son’s bedside as he dies of AIDS has every legal right to do so.

11

I wish I had access to a Lexus! I’m driving a crummy Ford!

Krispy Original – The original SDMB bad boy

12

The DOMA is an intriguing and frightening foray into politics, but it doesn’t add anything to the Constitution. The several States get to decide what they consider to be a marriage. If Vermont decides to create same sex marriage, they’ll be legislating only for themselves. Some states allow adopted sibling marry, others consider this a void marriage based on incest. Don’t expect the latter to give any faith or credit to the former’s idea of marriage.
Its federalism, its quirky, its yours

13

Meara wrote:
Hmmm… If a prostitute and a gentleman sign a contract for sex in Nevada, is California required to allow them to execute it within its borders?

Yes, I’d say. If a couple physically met and established a contract in Nevada, then met up on a susequent occasion in California, they should be considered acquaintences meeting in private for consensual sex. The money changing hands is due to a personal promise made earlier in the friendship, not illegal business conducted in California. How could they enforce it? There’s nothing for California to identify as the “point of business”. The purpose of prostitution laws is to prevent the solicitation from infecting the local communities. I don’t think people jet-setting with high-priced escorts is on the verge becoming an epidemic.

14

Meara wrote:

IANAL, but I don’t think so; you’re still committing an illegal act under California law, so you’re subject to prosecution under California law. If you could do this, then all a company would have to do to get around any state laws would be to sign a contract in a state where the actions in question are not legal. This means I could get around state concealed weapon laws by signing a contract to carry a weapon as someone’s bodyguard in a state where concealed carry is legal, or ignore state antidiscrimination laws by signing a contract to use ‘discriminatory’ hiring practices in a state with less stringent laws, or slide by state public nudity laws by signing a contract for a strip show somewhere with looser laws. This would seem to make state laws virtually worthless.

My understanding of the full faith and credit clause is that other states would have to accept the court’s judgements, not that they have to allow people to commit illegal acts that aren’t illegal in the jurisdiction where the contract was signed.

To keep up the orignal example, lets say that I sign a contract with a woman in Nevada that states that I’ll pay her $1000 and she’ll have sex with me during my upcoming vacation. She, however, slips away to California and refuses to honor the contract, so I take it to small claims court. The court rules in my favor, and issues a judgement that she owes me my $1000
back. Under the full faith and credit act, California has to honor that judgement as it was valid under Nevada laws, and I can go through normal debt collection procedures in California.

‘Shoulds’ don’t enter into it; I don’t think that prostitution should be illegal in the first place, but that’s not what’s being discussed here. What relevant is whether the couple in question has committed a criminal act, not whether what they did should be a criminal act.

It depends on the exact wording of California’s antiprostitution laws, but most such laws criminalize having sexual relations in exchange for money, and the having of sexual relations would be the criminal act in this case, with the contract being used to show that said relations were being done to have money. The ‘illegal business’ being conducted is having sex for money, and the ‘point of business’ is wherever the two are having sex. Pretty much any prostitution is a personal promise to exchange money for sex.

While I agree that such a case is unlikely to actually be investigated, much less prosecuted, the fact that a lot of prostitution, petty drug use, traffic offenses, etc are not investigated or prosecuted does not mean that those actions are legal.

Kevin Allegood,

“At least one could get something through Trotsky’s skull.”

  • Joseph Michael Bay
15

Polycarp wrote:

Hmmm.

To quote Johnny Carson, “I did not know that. I diiiiiid not know that.”

That puts the Vermont thing in a whole new light for me. You’re right, there’s probably nothing in the Vermont constitution that would forbit same-sex marriage. What are the requirements for amending the State Constitution in Vermont? (Here in California, you can amend the State Constitution by a two-thirds popular vote on a ballot proposition. Which is why our Constitution is so damn long now.)

The truth, as always, is more complicated than that.

16

We remain off the thread, but I still say that prostitution laws are more concerned with the “front end”, the solicitation, the making it available in the local community, than than the fact that someone had sex for money. Doing business in public vs. interacting in private.

17

tracer writes

Hawaii did not pass a law legalizing SSM. Three same-sex couples in Hawaii sued the state for refusing to issue marriage licenses to them. The Hawaii supreme court found that refusal to issue licenses and grant “marital rights” to same-sex couples was a violation of the state constitution’s equal rights amendment. The reasoning was, if man A can marry woman A but woman B can’t marry woman A, then woman A’s right to equal protection under the law is violated. The state was required to show a “compelling interest” in denying SSM. The trial court found none of the reasons presented by the state (dealing with children, tourism, and Hawaii’s reputation with other states) to be compelling and ordered the state to issue licenses to same-sex couples. The court stayed its ruling pending appeal to the Hawaii SC, because any couples who married would be in a legally untenable position if the SC reversed the lower court. In the meantime, the people of Hawaii passed a constitutional amendment authorizing the state to pass legislation restricting “marriage” to mixed-sex couples only. To date, the state has not specifically done so. The Hawaii SC ruled that in light of this amendment the marriage license case was now moot, but it specifically reiterated its ruling that denial of “marital benefits” to same-sex couples was a violation of the state constitution’s equal protection clause. The attorneys for the couples involved has vowed to battle the state if need be for every marital right.

18

My understanding of the prostitution laws in Nevada is that the prostitution has to occur in a particular county in a particular licensed establishment. An independent contract such a you describe would still be illegal and against public policy in Nevada, and thus unenforcable.

19

Yeah, and the Mustang Ranch just got closed down, too. Are there any legal prostitution establishments left in Nevada?

20

The proposed amendment has to be passed by two successive sessions of the legislature and then approved by a popular vote. I don’t know if the approval by Lege or people has to be a supermajority or just a simple majority. With the Lege advancing a DP bill, it seems unlikely that a constitional amendment’s going to go anywhere this year.