The Defense of Marriage Act was hastily enacted in 1996, and signed by President Bill Clinton. The occasion for its hasty enactment was an opinion by the Supreme Court of Hawai'i that they were not sure one could refuse to issue a marriage license to a same-sex couple under the Hawai'i Constitution. While ultimately that court decided such license issuance was not required, by then the Congress had enacted overwhelmingly the legislation introduced by Rep. Bob Barr of Georgia. Here it is ironic that someone claiming to be defending the traditional understanding of marriage from the threat of same-sex marriage was himself on his 3rd marriage. But no matter.
Bill Clinton, then President, was already on record as opposing same-sex marriage. And it would not have mattered, given that the legislation passed the House 342-67 and the Senate 85-14. With the exception of two House members all the negative votes were cast by Democrats.
The two key provisions of the Act are sections 2 and 3, and I reproduce the text of both here:
Section 2. Powers reserved to the states
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.
Section 3. Definition of marriage
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 wif
I would argue that a plain reading of the Constitution and applicable Supreme Court precedents makes it clear that both provisions are patently unconstitutional, regardless of how the current membership of the Supreme Court may rule. Section 2 violates the Full Faith and Credit clause of Article 4, and Section 3 violates the Equal Protection clause of the 14th Amendment.
Marriage is not mentioned in the Constitution nor in any amendments thereto. It has always been considered a state matter, which is why, for example, although 1st cousins can get married in some states but not in others, that marriage has always been recognized across the country. It is why my wife and I, for example, got married where at the time we were both attending church - Maryland - even though we were residents of Virginia. It is why in my youth when the only grounds for divorce in New York was adultery (itself a felony) that one partner could establish residency fin 6 weeks in Las Vegas or Sun Valley, get divorced, then return to New York and immediately remarry.
This is because of the Full Faith and Credit clause of Article IV (section 1), 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.
Marriage is a legal proceeding registered under state law. So are divorce, annulment, adoption, etc. While Congress can set a standard for proving to another state the status established by the action, it cannot prohibit it. This is bright-line constitutional interpretation, going back to Marbury v Madison, in which Chief Justice Marshall ruled that the provision of the 1789 Judiciary Act that allowed Marbury to file his suit for a writ of mandamus in the Supreme Court was unconstitutional. Filing at SCOTUS meant the Court was hearing the case under original jurisdiction, and yet such an action was not including in the specific occasions of original jurisdiction listed in Article III of the Constitution, which read as follows:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.
Marshall wrote quite plainly in his opinion in the Marbury case as follows:
The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
In other words, the Congress has no constitutional power to limit the reach of the Full Faith and Credit clause by statute, and more than it did to expand the bounds of original jurisdiction in the 1789 Judiciary Act.
Then we come to Section 3. Marriage is established by the state. But there are benefits of marriage that accrue to couples under Federal law. For example, the right to file a joint federal income tax return is limited to legally married couples.
Now imagine two couples from Massachusetts. Both are legally married under state law. The heterosexual couple gets the federal benefits, the same-sex couple does not. Now the Equal Protection clause comes into play. At the end of Section 1 of the Fourteenth Amendment are two critical clauses, the Due Process clause that eventually led to incorporation of protections of the Bill of Rights against state actions and the Equal Protection clause. The text reads as follows:
nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Parsing the text as applicable, it is "nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws."
On its face, this would seem to simply apply to state action, and thus Section 3 of DOMA would not be affected.
Except the Supreme Court has spoken clearly on this topic. In what we call Brown v Board of Education, five cases of school discrimination were argued simultaneously. Brown was the first of the cases listed, although another case was what was actually argued. Brown was from Kansas, Briggs v Elliot (which was argued by John Davis) was from SC, Davis v. County School Board of Prince Edward County was from VA, Gebhart v. Belton was from DE, and Bolling v. Sharpe was from DC.
The unanimous Brown decision addressed the four cases from the states, using the Equal Protection Clause and deciding that in the case of schools separate was inherently unequal and thus did not even mee the separate but equal provision of Plessy and thus was unconstitutional. (As a side note, while Warren's opinion made clear that the Court was prepared to overturn Plessy, it did not do so as it could resolve this case without having to take that action).
But now we have the DC case. So let me offer several snips from Warren's opinion in the Bolling case:
The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.
In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.
What we have here is what could be called reverse incorporation. Let me explain. The Court had over time ruled that the Due Process clause of the 14th Amendment against the states sufficiently paralleled the Due Process clause of the 5th Amendment against the Federal government that it incorporated the protections of the Bill of Rights against state action. It is called "selective incorporation" because the rights were incorporated (applied) one right at a time, one case at a time.
What Warren did in Bolling is to take the language of the Equal Protection clause, which is written against the state, and by noting it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government applied that Equal Protection clause against federal government action.
Once that was done in 1954, allowing the Federal government to differentiate between heterosexual marriages and same-sex marriages in granting federal benefits becomes a violation of the Equal Protection clause.
I am aware that there was a history of states refusing to recognize marriages duly completed in other states, most often on the basis of race. But that question was disposed of in 1967 in Loving v Virginia, which was argued April 10, 1967 with a decision for the unanimous Court issued by Warren on June 12, 1967. The Lovings had been married in DC, where there was no racial bar to marriage, then returned to his home state of VA where what they had done was illegal - such marriages were also at that time illegal in 15 additional states. Allow me to again offer several snippets from an opinion by Warren:
The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
That would have been sufficient legal reasoning to decide the case. But the Court went further:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.
While these words were written in the context of a dispute over a racial qualification (as the language which immediately follows makes clear), describing marriage as among
the basic civl rights of men as being
one of the vital personal rights essential to the orderly pursuit of happiness by free men makes clear that this is not merely a question of the racial distinction being overturned, but rather that the racial distinction cannot be upheld because of the nature of the right - a vital personal right, a basic civil right.
And lest anyone use the words "fundamental to our very existence and survival" to argue that same sex couples cannot reproduce by normal means, neither can many heterosexual couples, either because of the age of the female (oist-menopausal) or other physical limitation of either the male or the female, and we do not deny them the right to marry.
I am not a lawyer.
I am aware that lawyers often seem to find torturous readings of Constitutional material to reach decisions that on their surface would not seem to be supported by the Constitution - Citizens United is but one example.
And yet, the plain text of the Constitutional language, and well-established interpretations of that text by unanimous Courts would seem to be indisputable.
It is not clear to me that one could, despite the decision in Reynolds v United States, legitimately bar polygynous or polyandrous marriages. The former exist in Islam, and there are a few societies in which the latter occurred. While the Constitution does not require that we recognize marriages contracted in other nations, in general we have, and to begin to make distinctions brings the Equal Protection clause into play, although it may not be as absolute in such circumstances. Still, increasing numbers of nations with whom we have close relations - eg, Canada - have full marriage equality.
And if even Mitt Romney is willing to allow adoption by same-sex couples, perhaps he needs to consider that such adoptions imply a familial (and thus parental) relationship legally recognized. Does that parental relationship disappear if one crosses from a state which allows it to one that does not? Is not that also a violation of Full Faith and Credit? Does not that create confusion? Does not that also perhaps violate the privileges and immunities clause which allows us to move freely from one state to another?
I have no idea how the current Supreme Court might rule on any of this.
Yet I think the legal argument justifying marriage equality is pretty compelling.
I also think that we cannot completely leave this to the states, any more than since 1967 the issue of interracial marriage could be left to the states.
And the arc of history is clear, those opposing marriage equality to the contrary.
The US is already well behind the rest of the world in our insistence in maintaining capital punishment. That would bar us from membership in the European Union.
For too long we were behind almost all of NATO in allowing openly gay service in the military. Thankfully we have finally overcome that.
Let us not remain too long behind other nations in recognizing that our gay citizens are entitled to full equal rights, including full marriage equality.
Peace.