Is DOMA Constitutional?

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 :

Text of the law:

The legislative Summary and Analysis:

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:

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.

I agree. But that shouldn’t be a surprise. :wink:

Honestly, I don’t understand how this can be seen as anything but an undermining of “full faith and credit.”

Apart from being a personally offensive bill, I fear the precedent it might set.

Check that. Personally offensive law, and I fear the precedent that will be set if it is found constitutional by SCOTUS.

Aw, quit’cher belly-achin’. Just think of what a boon this Act is to the Constitutional notion of States’ Rights!

Well, if they get the required number of votes, the legislative branch can pass darn near anything it wants to. Constitutionality gets sorted out later if/when someone has a problem with it.

Now, IANALORACSORABBB (I am not a lawyer or a constitutional scholar or a blah, blah, blah…) but I don’t think this law will pass. If it does, I think it will be found to be unconstitutional because it violates the Equal Protection Clause and the Due Process Clause.

A few precedents:
Zablocki v Redhail (1978): Statute required man to obtain permission from a court in order to get married if he has a minor child outside of marriage which he must support. Statute struck down.
Roe v Wade (1973): debate on the best way to cross a river.
Griswold v Connecticut (1965): Planned Parenthood may issue contraceptives for contraceptive purposes to married couples.

All of this says one thing: what is private should stay private and it’s not the government’s job, nor should it have the ability, to regulate it.

Then again, there are still sodomy laws on the books and other anti-gay laws that have been upheld. Still, my money is on it being declared unconstitutional.

Well, I don’t know. The court ruled in Pacific Employers v. IAC that, regarding Full Faith and Credit,

In it, the court ruled that California could grant injury damages to a worker injured in CA, even though the employee resided in and worked in Mass, which had a statute forbidding the CA. claim.

So, then, wouldn’t marriage fall under that provision?

Prof. Larry Tribe, a renowned constitutional scholar at Harvard, has taken the interesting position that DOMA is both unconstitutional and unnecessary.

The full faith and credit clause has been interpreted by the Supreme Court as not requiring states to honor acts by other states that are contrary to their fundamental public policies. A state could probably creditably argue that same-sex marriage in another state contravened its own public policy and get out of respecting it, even without DOMA.

DOMA is interesting in that instead of implementing a requirement of the Constitution, it attempts to limit that requirement. This aspect is what Tribe finds to be unconstitutional.

Practical question. Some states permit first cousins to marry; others do not. Two people, first cousins, resident in a state where it is legal, marry, and at a later date move to another state where such a marriage is considered incestuous. I’d consider prohibiting incest to constitute part of “fundamental public policies” as most people would define them. Are they married? Why or why not?

What are “fundamental public policies”? How do they trump the generically phrased constitutional mandate? I’d love to see the legal arguments underlying your statement spelled out. (I’m not necessarily disagreeing with your assertion, just wanting to have some more background in its support.)

FWIW, the Judiciary Act of 1789 did not say this. No provision of the Judiciary Act, on a straightforward reading, expanded the jurisdiction of the Supreme Court to hear such petitions. The Supreme Court could have, consistent with the Judiciary Act and the Constitution, denied Marbury’s petition on the grounds that it lacked jurisdiction over the matter and been done with it. However, that would have not accorded with John Marshall’s political goals. Chief Justice Marshall deliberately misinterpreted the Judiciary Act in order to reach the conclusion he wanted. Marshall’s decision in Marbury was a stroke of political genius, but the decision is sorely lacking in analytic or legal merit.

KellyM, it sure looks to me like The Judiciary Act of 1789 provided for mandamus as an original remedy:

I think that mandamus directed to a lower court might fit within the concept of appellate jurisdiction, since it serves as review of a decision by the lower court.

However, a writ of mandamus directly from the Supreme Court to a federal official looks to me like original jurisdiction: the Supreme Court would be supervising the actions of the official, not reviewing a decision from a lower court.

Unconstitutional; but that doesn’t seem to matter anymore. Whatever the looney right wing wants is by defination constitutional.

Resurrected as requested by minty green in this thread.

Restated in precis form, my thesis is that Article IV, Section 1 places an affirmative mandate on each state to give full faith and credit to the acts of another state, including the solemnizations of marriages and equivalent acts in compliance with the relevant state’s laws. The second sentence of Section 1 simply empowers Congress to make appropriate laws for a national standard of proving and bringing into effect the acts of state A as regards state B. (E.g., “If you win a lawsuit in A against person X who has property in B, you must do this, this, and this in order to seize X’s property in state B to satisfy the lawsuit.”)

It does not enable Congress to permit the states to supersede the affirmative mandate of the first sentence of that Article, any more than the right to pass laws regarding the Judiciary allowed the First Congress to equip the Supreme Court with a piece of original jurisdiction not given it by the Constitution.

The problem with that analysis, Poly, is that Full Faith and Credit does not impose an absolute obligation on each state to recognize the others’ marriages. Instead, they need only do so if the act is not “repugnant to public policy.” That’s a pretty vague standard, of course, but it does leave some significant wiggle room, and probably more than enough for other states to refuse to recognize gay marriages made legal elsewhere.

ISTR a mid-20th century case where New York (?) law made marriage legal between uncles and nieces if they were of some particular religious group. The married couple then moved to some other state (Connecticut?) and a dispute over the validity of the marriage eventually broke out (I believe after one or the other of the spouses had died–inheritance thing). I honestly don’t recall whether the court recognized the marriage, but the applicability of Full Faith & Credit was far from a slam dunk.

Anyway, DOMA is probably a nullity. Congress can’t just go around telling the courts how to interpret the law–witness the recent case involving the federal anti-Miranda statute and the flag-burning statute Congress passed in response to the first flag-burning statute. Unfortunately, it is a nullity that expresses a most unseemly homophobia, or at least a distressing willingness to suck up to homophobic voters. The courts are perfectly capable of straightening out the FF&C clause all on their own, guys.

Apologies for the lack of citations, but I’m working off my law school outline for Family Law. It’s one of the few I didn’t put together myself, with the resuly that the citations are rather sketchy. Apparently, one case to look for is “Farrah–CtApp Vir, 1993.” Guess that’s what I get for taking Family Law at 9 a.m. in the last semester of law school. It’s a wonder I even rolled out of bed some mornings. :slight_smile: