A couple of days ago guest poster Jeremy Bishop, Executive Director of Pride at Work, discussed the Defense of Marriage Act (DOMA) as an impediment to marriage equality. I fully agree with almost everything he says and commend him for saying it, but believe that one part deserves a bit of extended comment and clarification. I don't believe that his comment about the effect repeal of one part of DOMA would have on a state's recognition of another state's same-sex marriage is totally accurate.

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Jeremy states, in discussing DOMA and the presidential nomination race:

As LGBT people face the decision on who to vote for in this Democratic presidential primary, there is only one candidate that supports the full repeal of DOMA, and that is Senator Barak Obama. Senator Hillary Clinton supports a partial repeal but would leave the language that other states do not have to recognize marriages performed in other states. The practical application of this partial repeal would mean that for people who got married in Massachusetts, but now reside in Pennsylvania, their marriages would not be worth the paper they were written on. The only way for our community to see full parity under the law is to repeal this unjust and un-American law.

I agree with his characterization of the different positions Senator Obama and Senator Clinton have taken on DOMA. But I don't believe he is completely correct in inferring that the repeal of the part of DOMA which says that a state is not required to recognize same-sex marriages contracted in another would achieve "full parity" for the same-sex couples involved.

Here's why: Despite the fact that alarmed right-wingers pushed DOMA was because of fears that under the Full Faith and Credit Clause (FFC) of the U.S. Constitution, same-sex marriages valid in one state would have to be considered valid in all, most legal scholars disagreed with this interpretation of that clause. Fairly well-established precedent prior to DOMA had established that the FFC applied to "judgments" rendered in one state that others had to accept, and not to marital status itself. If a particular state found an out-of-state union to be "against strong public policy", it did not have to recognize it. (One might be tempted to object that since the Loving vs. Virginia decision no states can ban interracial marriages, but this decision was based upon the Equal Protection Clause, not the FFC).

The part of DOMA involved for the most part simply reflected what was already accepted law. That law depended neither on the FFC nor on DOMA for its validity. Therefore the repeal of that section of DOMA would still leave a state with a strong public policy against same-sex marriage with the ability to deny recognition to it. Keep in mind that DOMA says states "need not" recognize; it doesn't say that they "shall not" recognize them.
In stating that the repeal of the DOMA section on state recognition would have no legal effect in that area, I'm not disputing Jeremy's advocacy of repeal of both sections. I would add, though, that one argument the supporters of the proposed Federal Marriage Amendment have made for its adoption is that if DOMA were declared unconstitutional, a backup would be need to keep same-sex marriages from spreading. That argument is very flawed, but the factors that drive backlashes frequently do not meet the test of being logical. So there could be an element of "be careful of what you wish for" in this regard.

That aside, it should be kept in mind that the repeal of all of DOMA would not, by itself, mean that same sex marriages valid in one state would automatically require recognition in all others. There would seem to be only one way for that to happen: a decision by the United States Supreme Court under the Equal Protection Clause that a state creating or recognizing another state's marriage cannot distinguish between same-sex or heterosexual marriage. Some have suggested federal legislation to bring about the same thing but for reasons too long to go into here I believe that this approach would have constitutional hurdles and would not have the same universal sweep. In any event, the Supreme Court decision referred to above doesn't seem likely anytime soon, given its makeup.

My main point in going into all of this, other than to take mild issue with Jeremy's comment, is that in our rightful zeal in working for marriage equality, as in other rights important to the GLBT community, we need to be armed with as accurate a picture of what this or that development might or might not do in achieving the overall goal. The same is true in the current discussion over the merits of civil unions versus marriage, a topic that I will be writing on in the near future.