A non-lawyer looks at DOMA
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:
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 statesI 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.
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