PRESIDENT OBAMA has come under fire from conservatives who are outraged over his decision to stop defending the constitutionally suspect Defense of Marriage Act in court. It was, however, the right decision. There are good reasons to believe that the law, which prohibits the federal government from recognizing legally valid same-sex marriages and authorizes states to do the same, is unconstitutional.
The Act was passed less than two months before the 1996 presidential and congressional elections. With skittish Democrats reluctant to take an unpopular stance on a controversial social issue before running for re-election, it sailed through both chambers of Congress with huge bipartisan majorities and was signed into law by President Clinton.
And today? Most recent polling on the issue shows that a narrow majority of Americans support same-sex marriage. The Respect for Marriage Act, a bill to repeal DOMA advanced through the Senate Judiciary Committee by a 10–8 vote in November. Of it’s thirty co-sponsors, eleven originally voted for DOMA themselves just fifteen years ago. For gay rights advocates, this is both cause for hope and a testament to the cynicism with which the original vote was cast.
The anti-DOMA side has argued in federal courts, with no small success, that the law violates the Fifth Amendment guarantees of due process and equal protection of the law. In July 2010, Judge Joseph Tauro of the District Court for Massachusetts struck down the part of the law on this basis, although his decision was later put on hold as an appeal pends. In his ruling, he declared that it served no rational purpose and was motivated solely by “irrational prejudice,” which “plainly never constitutes a legitimate government interest.” Since then, several other federal judges have followed suit.
DOMA does two things: it prohibits federal recognition of same-sex marriage, and allows states to refuse to recognize same-sex marriages performed in other states. So far, opponents have focused almost exclusively on the first provision. The trouble with this approach is that it could result in the second provision being allowed to stand as law. And yet, we should not settle for this outcome. While Section Two has long been regarded as less obviously suspect than the rest of the law, there are powerful constitutional arguments against it that provide a compelling new line of attack. The arguments against Section Two refer to the constitutional provision called the “Full Faith and Credit Clause,” which reads: “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.”
Since 1790, this provision has been read to mean that the judicial rulings of one state are enforceable in others. But the rule only applies to final judgments of courts. It does not apply to licenses, such as marriage licenses. That’s why the bill recently passed by the U.S. House requiring states to honor each others’ permits to carry concealed weapons is unprecedented. There is not one judicial decision in American history holding that full faith and credit requires states to recognize marriages that violate their own public policies concerning who may marry.
What the Constitution does require is that, after litigation, a judgment be enforceable throughout the U.S. DOMA, however, declares that a state need not even give effect to a “judicial proceeding” respecting a same-sex marriage. This implies that states can ignore all judgments in which a same-sex marriage was recognized. If a drunk driver kills a pedestrian on a Boston street, the victim happens to have been married to a person of the same sex, and the surviving spouse wins a wrongful death suit, could the driver avoid the consequences by fleeing with his money to a state that does not recognize same-sex marriage? Section Two violates the Full Faith and Credit clause’s requirement that state courts abide by judgments of other states’ courts.
Here the effects are potentially radical. DOMA appears on its face to partially repeal the Parental Kidnapping Prevention Act, which bars divorced parents from carrying their children to distant states to re-litigate their custody disputes. A court in Arizona, where same-sex marriage is barred, would not be required to enforce a child support order involving a divorced gay couple issued by a court in New Hampshire, where it is legal. It gets worse. Our hypothetical drunk driver could, under DOMA, hop from state to state until he found one that refused to recognize the marriage’s validity.
Defenders of DOMA, such as University of St. Thomas Law School professor Michael Paulsen, argue that, given its power to “prescribe … the effect” of one law in another state, Congress may withhold mandatory recognition wherever it likes. “The power means Congress can require that states be bound by other states’ laws and judicial decrees,” Paulsen wrote in an e-mail; “it can provide that states not be so bound.”
This argument, if accepted, would be the end of federalism, because it would give Congress a free hand to manipulate state legislative choices. If DOMA is permissible, then so would be a detailed federal code of state laws, which states would have to adopt in order for their judgments to be enforceable out of state. The reserved powers of the states would disappear. It is weird to see conservative legal scholars advocating this. If federalism is a structural principle in the Constitution—and many interpreters agree that it is—then DOMA is invalid on this ground as well.
Finally, Section Two targets gays and lesbians specifically for discrimination, denying them equal protection of the law. Under the 1996 Supreme Court case Roemer v. Evans, a law that is the product of raw animus against homosexuals is unconstitutional even if specific applications of the law might seem innocuous. The results we have just surveyed are so capricious that it is hard to discern any conceivable rational basis for them.
With Republicans controlling the House, the only avenue for ending DOMA is the judiciary. This barrier to equal status for same-sex couples under federal law should be torn down; gay rights advocates should train their vision on Section Two.
Andrew Koppelman is a professor of law at Northwestern University.
Bradley Silverman is a student at Brown University.
