I kind of scratched the surface of beginning a discussion about gay marriage on LWY’s blog the other day. Obviously, it was spurred by the recent decision by the California Supreme Court that essentially decided that it was unconstitutional to deny gays the right to marry, which was decided as a fundamental right, and deny them any of the rights and privileges of other married couples. The court also decided that from now on, discrimination based on sexual orientation would be a suspect class and subject to strict scrutiny (an argument I made almost two years ago, by the way):
The majority opinion, by Chief Justice Ronald M. George, declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender, making the state’s high court the first in the nation to adopt such a stringent standard.
The argument wasn’t so much about the right or wrong-ness of same-sex marriage, but about how this will play out in the future. LWY said that marriage is, and should stay, a local concept, and that the federal government should stay out of it. I agreed to an extent, but pointed out a problem with this idea. Namely, the Constitution of the United States and a federal law called DOMA.
First, let’s get to DOMA. (I’m writing this in reverse order, essentially, to build the suspense. If this was a law school paper, I would lead with the Constitution.)
DOMA is the Defense of Marriage Act (28 U.S.C. § 1738C), signed into law in 1996 by President Clinton. It says:
1. 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.
2. 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.
What is basically says is that marriage is between a man and a woman and that one state doesn’t have to recognize a same-sex marriage from another state. Case settled, you say.
Well, no. Not exactly.
You see, Article IV of the Constitution says:
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.
Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
Section 1 is generally known as the “full faith and credit” clause. What it essentially means, in the context of this argument, is that if you get married in one state, the rest of the states must acknowledge and respect that marriage.
So how does DOMA jive with Article IV? It doesn’t. I can’t think of a single argument that could support the constitutionality of DOMA. I know Nephtuli (who told me this by email) wrote a note on the constitutionality of DOMA, so I’d be curious to see what arguments he came up with. And I know that there have been a couple of minor challenges to DOMA (mostly in Bankruptcy courts) that have upheld it (mostly as a dodge, that the Bankruptcy judges were not mixing into this one). But it’s not been challenged in SCOTUS. And it will be, soon.
I have no doubt that a test couple if going to get married in California and move to, say, Nebraska, where gay marriage is not recognized, and gay couples are specifically not given the rights of married couples. Then, they will apply for something or other, whether it’s to file a joint tax return, or request benefits, or for hospital visiting hours, or something tied to marriage, and it will be denied. And the couple will sue to have the State of Nebraska or whoever else recognize their marriage, and the case will hinge on DOMA and Article IV. And it’ll eventually get to a Circuit Court and a cert petition to the Supreme Court. And then the Justices will have to settle the issue. (Unless the voters in California vote to amend the California constitution, then this will be all moot.)
And they can, without even getting into the Privileges and Immunities clause of Section 2 of Article IV, and what it means for denying to homosexuals rights that are granted to other citizens. And that’s without even having to get into Equal Protection and declaring sexual orientation a suspect class (something I wish the Supreme Court would do, but am not rosy about those chances). They can overturn DOMA simply because DOMA is the kind of law that Article IV of the Constitution was designed to protect against.
Like I said, I can’t see a valid legal argument to suggest that DOMA doesn’t exactly and specifically contradict and run afoul of Article IV. Hopefully, SCOTUS will see it that way, too.