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:
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.