A fourth step that could be taken to make SSM a reality has to happen in Congress, not in California. It is quite simple — the Defense Of Marriage Act (DOMA) must be repealed.
DOMA was passed by a vote of 342-67 in the House and 85-14 in the Senate in 1996, and signed into law by President Bill Clinton. The author of the law, then-Republican Congressman Bob Barr, has since apologized for it and expressed regrets for sponsoring it. I wish he had been more forceful in opposing this in his Presidential campaign, but then again he attracted minimal attention and minimal support during the campaign, so it’s of minimal importance anyway.
DOMA is found in two provisions of law — 1. U.S.C. § 7 and 28 U.S.C. § 1738C. For once, Wikipedia gets a description of the law exactly right when it describes the effect of DOMA:
- No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
- The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
The law is of suspect, but as-yet untested, Constitutionality. The Constitutional challenge to DOMA is that it violates the Full Faith and Credit Clause, found in Article IV, section 1 of the Constitution, which reads in full:
Each State to Honor all others. 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.
The main critique of DOMA on Constitutional grounds is that if one state (let’s call it, hypothetically, “Massachusetts,”) has issued a marriage certificate to a same-sex couple, that is a “public Act” that another state (let’s call that theoretical state “California,”) is obligated by the Federal Constitution to honor. No provision of that second state’s Constitution, and no act of Congress, can supersede this requirement of the Federal Constitution, which trumps everything.
Defenders of DOMA say that the second clause of this section specifically authorizes DOMA — Congress gets to say when the public act of one state do or do not have to be honored. Congress, this argument goes, is made the arbiter of state-versus-state disputes about interstate recognition of state acts. I disagree with that interpretation because the second clause states only that Congress can decide the “Manner” by which one state recongizes and gives effects to the acts of another.
A better argument in support of DOMA, actually, is that it is superfluous, and that there is a substantial body of law that states that despite the Full Faith and Credit Clause, a state need not give legal effect to an act of another state that is contrary to a fundamental public policy of the second state. If California has a fundamental public policy in its Constitution that marriage is only between one man and one woman, then a Massachusetts marriage license that is not congruent with California’s policy need not be honored in California. This doctrine has been applied in cases regarding polygamous or consanguinous marraiges — and, prior to Loving v. Virginia, also to uphold anti-miscegenation laws.
The other portion of DOMA, which states that the Federal government will not honor any SSM, is probably Constitutional. None of which would matter if DOMA is repealed and no longer the law of the land.
When the new Congress is seated in January, it will be 13 years since DOMA was enacted. But turnover in Congress has been relatively low, so a large majority of those legislators who voted for DOMA would be asked to reverse themselves — despite partisan control of Congress changing hands in the intervening half a generation. And let’s face it, regardless of which party is in control, the denizens of Congress are not as a group notable for either their political courage or their ability to admit having made mistakes.
So realistically, I don’t see Congress doing this unless a large number of its members see significant groundswells of support for such a thing. The signals being sent by the states — most prominently the passage of Prop. 8 in California but also similar amendments in Arizona and Florida — are that it would be far safer for Congress to leave DOMA alone. And a strong argument could be made that Congress has weightier matters to consider than this anyway.
But the question is, what can be done, in the wake of the passage of Proposition 8, to help make SSM a reality. Repeal of DOMA would be such a thing. It could happen if enough members of Congress either summon the courage to tackle the issue or sense that there is a signficant public demand for doing it. I don’t see it as a very probable event, though, and I don’t think lobbying for its repeal is a productive use of SSM advocates’ time, money, or energies until SSM becomes a reality in more than two states and the population as a whole becomes more accepting of the idea than it is now. Repeal of DOMA will take place after repeal of Prop. 8, not before.
