Wednesday, June 26, 2013

One quick(ish) point on DOMA

There's one misconception that a lot of people are expressing about today's Defense of Marriage Act (DOMA) ruling, so I just want to set it straight briefly. Some are saying, "Huzzah! DOMA is dead!" Some are ruefully shaking their heads saying, "No, Section II is still barring full faith and credit for same-sex marriages." Section II is the provision that says states can refuse to recognize same-sex marriages lawfully entered into in other states.

The Huzzahers have the right idea. The rueful head-shakers shouldn't have expected a Section II win as that issue wasn't involved in the case at all. Invalidating one section of a statute almost never results in the entire large law being invalidated. But more importantly, Section II isn't the real reason why those states that ban same-sex marriages are allowed to refuse to recognize such marriages from other states. Section II was just a codification of existing interpretation of the Full Faith and Credit clause of the US Constitution.

This is kind of arcane legal stuff that maybe only hard core legal geeks have any idea about. Full Faith and Credit most traditionally applies to court judgments. If I have a money judgment against you in Kansas, you can't move to Missouri and think then you'll get out of paying it because Missouri will enforce that judgment for Kansas. That kind of thing. It has long been the law, though, that a state can't be forced to do things by other states that would violate that state's public policy. A lot of it comes down to the difference between court judgments and legislative enactments. Then there's the difference between recognition and enforcement. (As in a state that doesn't allow same-sex couples to adopt has to recognize the legal rights of parents who lawfully adopted children in a different state, but that state doesn't have to issue a birth certificate that would violate its own laws.) It's all very detailed and complex and I'm not well-enough versed in it to explain it very well.

The only thing any lay person really needs to know about all of this is that even without DOMA, states are free under current full faith and credit jurisprudence to refuse to recognize marriages performed in other states that are "repugnant" to their own state laws. At least there isn't any Supreme Court case that says they aren't free to do so.

In fact, I researched this recently as it relates to first cousin marriage. There are 3 states in this country that do not recognize any marriages between first cousins, regardless of where those marriages were performed. Just as an example. So same-sex marriages entered into in Iowa aren't the only marriages Arizona refuses to recognize. My cousin who lawfully married his cousin in a New England state had better not move to Arizona.

The point is that this scenario changing does not in any way hinge on Section II of DOMA. As it stands now, states are free to decide they will recognize same-sex marriages from other states. And as it stands now, the law surrounding full faith and credit does not require states to recognize such marriages if they don't want to. To change this, we need a broader discussion on full faith and credit and we need it to get up to the Supreme Court. DOMA doesn't even have to be involved for the full faith and credit issue to be challenged.

Or we could just get with the 21st century and get same-sex marriage legalized and recognized in every state already. That would take care of it, too.


Anonymous said...

I don't think that DOMA has a severability clause.

S said...

I don't think it matters either way. Even without a severability clause, a court can still excise a portion of a statute without striking down the entire thing. The Second Circuit decision, which is what was explicitly affirmed, was careful in its language that only this section was invalid.

And more importantly, and the point of the post, DOMA isn't the reason states aren't recognizing same-sex marriages from other states. So whether Section II falls or not is irrelevant as that won't settle the full faith and credit issue.

Britney said...

Even with the supreme courts decisions, same sex couple still have a long way to go. Their fight is not over yet.

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