Thursday, June 27, 2013

Ding-Dong, DOMA's Dead!

Yes, this is yesterday's news, but this is the first I've had a chance to sit down and write down a coherent response to SCOTUS's ruling.  Yesterday's response on my part was confined to whooping, hollering, and maybe a few tears. 

Obviously, this is great news for all same sex couples in the 12 (soon 13, after SCOTUS instructed the lower court to dismiss the Prop 8 case out of California) jurisdictions that allow marriage equality.  For people in states like Ohio, where there are constitutional bans on same sex unions, the ruling is less clear right now.  Part of the confusion lies in the distinction of how federal organizations define marriage- by place of celebration, or place of residency.  If the place of celebration is used, then federal benefits should be a very real possibility.  Hopefully, there will be some consistency brought to the definition soon, and to my (admittedly limited- so please feel free to correct me) knowledge that could be done without an act of Congress in most cases.  As if Congress was active in the first place right now. 

If the place of residence is used, then it's a harder fight, and the couple would likely have to reside in a marriage equality state. 

What really throws a wrench in the works (or has the potential to be a huge break through), is the Full Faith and Credit Clause.  Article IV, Section 1 of the US Constitution states:

"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."
This is the fun little clause that allows you or I to have a destination wedding, or to move after we're married and have that marriage recognized.  This clause and the due process and equal protection portions of the Fourteenth amendment were the grounds that the court used to decide Loving v. Virginia.  It's important to note, however, that yesterday's decision was based on the due process clause of the Fifth amendment instead.  Also of note, to me anyway, is that while Loving and Windsor were decided on different bases, the framing and terminology were similar.  From Loving:
The Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.
and From Windsor:
DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State.
While SCOTUS yesterday refused to affirm that marriage is a constitutional right by refusing to rule on Prop 8, Warren did make that claim in the Loving case that stopped miscegenation laws.  I think that's an important reality to remember.

And just for the sake of CMA, this is a thought experiment on my part, I am not a lawyer, and really, don't take legal (or any) advice from a blog.  Especially one written by me.  :)

For other, related interpretations of the possible effects of Full Faith and Credit on marriage equality, there's some good (if dated) discussions here:

National Review

Doug Linder, Law Professor, University of Missouri-Kansas City Law School

Ivan Hoffman, JD

JP Feldmeier, 1995. Publius 25(4):107-126.

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