Last Tuesday I initiated a short series of articles intended to be a primer/refresher on the overall subject of marriage versus civil unions. I note that since then Bilerico fellow contributor Marla Stevens has weighed in with some comments about the inadequacies of civil unions. While I have my own opinions concerning which is preferable/acceptable to me, I'll hold them until later. For now some more facts, principles, and background.
My initial piece began with the observation that when Presidential hopefuls like Mike Gravel and Dennis Kucinich say they favor same-sex marriage, it leaves a lot unsaid as to how they would/could be instrumental in achieving it. I continued that marriage is a status bestowed under state law, although federal benefits also based on it. Then I indicated that for the most part, State A generally considers a marriage contracted in State B to be valid, even though it might not be if contracted in State A itself.
Of course, there is a very large exception to that last statement: same-sex marriage. This is where the Defense of Marriage Act comes into play. Continue with me past the break and I'll explain further, beginning with some history.
Back in the early 1990's, some gay and lesbian couples in Hawaii filed suit, claiming that under the Hawaii state constitution, they were entitled to be married. Because Hawaii's constitution contained language prohibiting discrimination because of gender, and made it easier to make successful equal protection arguments than is the case in most other U.S. jurisdictions, including Indiana, they won preliminarily in the state's highest court, which sent the matter back to a lower court for more detailed consideration.
This set off alarm bells on the U.S. mainland among evangelical conservatives and their allies. They feared that if same-sex marriages became legal in Hawaii, all of the other states would be forced to recognize them under the "Full Faith and Credit" Clause of the U.S. Constitution and related principles.
That clause essentially says that each state shall give "full faith and credit...to the public acts, records, and judicial proceedings of every other state", and gives Congress some authority concerning how this may be done and its effect. Legal scholars have not been in full accord as to how this clause affects inter-state recognition of marriage, or exactly what the Congressional power in this area means. Without getting more into the legal nitty-gritty, suffice it to say that many feel the Full Faith and Credit clause wouldn't compel a state to accept another state's marriage anyway, if it believed the marriage to be against its own "public policy".
But that view wasn't good enough. In response to the Hawaii situation Congress passed and President Clinton (in the middle of the night) signed the federal Defense of Marriage Act or DOMA as it's commonly called. DOMA says two things: (1) a state doesn't have to recognize a same-sex marriage of another state, and (2), for purposes of federal law (income tax laws, etc.) only opposite sex marriages are recognized.
As it turned out, before the Hawaii Supreme Court could issue its final decision, Hawaii amended its constitution to give its legislature exclusive power to restrict marriage to heterosexual couples, and since Hawaii law (the one being challenged) already did so, that ended the matter. (The Hawaii legislature subsequently did bestow some degree of civil union type benefits, however) But DOMA was in place, and remains on the books.
In the next installment I will continue the DOMA story and get into the role of state constitutional amendments in the marriage debate. As I said in the first post, one thing a Presidential candidate who says he or she favors full marriage rights can do if elected is to push for, and sign, legislation repealing DOMA.