Some legal experts have predicted that the law would not survive scrutinty of the Supreme Court of the United States, as it appears to by-pass the Full Faith and Credit clause of the United States Constitution or goes beyond the powers granted to Congress by that clause. Popular opinion says that the matter can not be settled by legislation but requires a Constitutional amendment (see Federal Marriage Amendment). A Federal Marriage Amendment would abolish same-sex marriage permanently and would continue the expansion of federal law into the states' "police powers" reserved to them by the Tenth Amendment.

From a federalist point of view, taking the extreme step of expanding federal law further into a states' police power by constitutional amendment may be premature regardless of whether DOMA is constitutional. The Supreme Court has long recognized a "public policy exception" to the FF&C clause. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. The public policy exception has been applied in cases of marriage (such as polygamy, miscegenation or consanguinity), civil judgments and orders, criminal conviction and others.

Regardless of whether DOMA is constitutional, most legal scholars recognize that it is more probably superfluous given the public policy exception. For even if DOMA is deemed unconstitutional, the long precedence of the public policy exception weighs in against the recognition of same-sex marriage, civil unions and domestic partnerships in states whose public policy prohibits it. As of early 2004, 39 states have passed their own laws nearly all of which specifically reject same-sex marriages recognized in other jurisdictions. Many of these laws have been passed in the last few years. By taking a legal stance on the issue these states have helped inform the Supreme Court what the public policy of the various states are before the Court takes up the issue and it is left to second-guess those policies.

In recent years, state legislatures and supreme courts have been moving toward recognition of same-sex unions as "marriage". These steps have split the country, being applauded by gay rights advocates but opposed by others (particularly Christians).

The gay rights movement has been trying to gain recognition of same-sex marriage as a fundamental right, so that homosexual partners could be accorded legal rights on a par with those of man-woman marriages. The key to their strategy is the Full Faith and Credit clause, by which historically each state has honored marriage licenses issued by other states. Thus, if a state such as Hawaii or Vermont were to legalize same-sex marriage it would seem that all other states would have to regard gay marriage as legitimate.

For opponents of gay marriage, this legal strategy appears to be a way of sneaking in gay marriage against the will of the majority of Americans by using a loophole. These opponents feel that Congress ought to have the right to close this loophole with legislation, citing a provision in the FFC clause that:

"Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

Both supporters and opponents of gay marriage accuse the other side of trying to "legislate morality".

Legal History

The Defense of Marriage Act was signed into law by President Bill Clinton on September 21, 1996 after moving through a legislative fast track and overwhelming approval in both houses of the Republican controlled United States Congress.

Critics of DOMA argue that the law is unconstitutional on several grounds including:

• Congress over-reached its authority under the Full Faith and Credit clause
• the law illegally discriminates and violates the equal protection clause
• the law violates the fundamental right to marriage (including same-sex marriage) under the due process clause

Note that the city of San Francisco started issuing marriage licenses to same-sex couples in February 2004.

Some states have proactively, by legislation or referendum, determined that they will not recognize same-sex marriages.

In response to the growing number of legal and political challenges, some proponents of DOMA have proposed the Federal Marriage Amendment to the United States Constitution, which would override any possible application of the Constitutional "full faith and credit clause" to same-sex partnerships, marriages or civil unions in other states.

"The bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex." [1]

See also: Same-sex marriage in the United States.

External links