Is DOMA Constitutional?

[Polycarp]

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.

[andros]

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

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.

[andros]

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

[tracer]

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

[Enderw24]

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.

[Captain_Amazing]

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

While the purpose of that provision was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states, the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.

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?

[ENugent]

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.

[Polycarp]

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.

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.)

[KellyM]

*Originally posted by Polycarp *
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.

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.

[Northern_Piper]

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

Sec. 13.
…
The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states in the cases hereinafter specially provided for and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principle and usages of law, to any courts appointed, or persons holding office under the authority of the United States. . . .

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.

[galen]

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

[Polycarp]

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.

[minty_green]

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.