DOMA

DOMA simply establishes that if any state chooses to legalize same-sex marriage, it may not force that radical redefinition of marriage upon other states or upon the federal government over their objection. DOMA simply preserves the right of the other states and of Congress to decide for themselves whether to legalize or recognize same-sex marrige.

Thus, the Defense of Marriage Act might well be called the protection of Federalism in Family Law Act. The main principles underlying DOMA are respect for federalism and for respect for the right of each state to settle the same-sex marriage definition questions for itself.

DOMA contains two operative sections. Section 2 provides that federal full faith and credit rules neither prohibit nor compel any state to recognize same-sex marriage laws, records or judgments from another state. Nothing in Section 2 bars any state from legalizing same-sex marriage or from recognizing same-sex marriages or decrees from another state. Each state is still free to give effect to another state's same-sex mariages if it chooses to do so.Section 2 simply clarifies that the federal full faith and credit rules do not force states to recognize same-sex marriages legalized in another state.

Thus, DOMA adopts a "neutral" position, that federal full faith and credit neither prohibits nor requires any state to recognize same-sex marriage acts, records and judgments from other states. It simply removes the potential federal compulsion (one way or the other) and leaves it up to each state to decide for itself what effect to give to same-sex marriage. The right of each state to decide whether to recognize marriages from other states that violate the public policy of each state is long-established. Both the first and second Restatement of Law, Conflict of Laws explicitly acknowledge that a state is not obligated to recognize marriages from other jurisdictions that violate its strong public policy.

Congress clearly has the power to enact legislation defining the full faith and credit effect of states' laws, records and judgments. The very language of the Full Faith and credit Clause of the Constitution (Article IV, §1) explicitly provides that "Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." The Supreme Court has repeatedly acknowledged Congress' constitutional authority to establish full faith and credit rules.

Section 3 of DOMA provides that for purpose of interpreting federal law, "the word 'marriage' means only a legal union between one man and one woman as husband and wife..." This defines what the term "marriage" means when used in federal law (such as federal income tax law and federal social security laws) only. The definition of such terms is a routine function of any legal system..

The definition of marriage in section 3 is not imposed upon any state law. DOMA says only that if a state chooses to legalize same-sex marriage within its own jurisdiction, that will not force the federal government to use that radical redefinition of marriage in federal programs and federal laws. Section 3 does not interfere with the ability of the states to define and regulate marriage for themselves. Nor does it deprive Congress of the ability to define marriage some other way if it were to decide that for some particular program that same-sex unions should be treated as marriages. However, DOMA accurately clarifies the fact that Congress has never intended to include homosexual unions when extending federal benefits to "marriages."

DOMA responds to a very serious threat to the ability of states to decide from themselves whether to recognize same-sex marriages. Efforts to legalize same-sex marriages are very far advanced. In Hawaii, a bill to extend marriage rights. to same-sex couples passed the Hawaii Senate earlier this year, and the Baehr case in which same-sex couples are seeking to judicially legalize same-sex marriage is scheduled for trial in Honolulu in September. If Hawaii or any other state legalizes same-sex marriage, hundreds of same-sex couples are expected to immediately go there, get "married, and then return home and demand that their homes state and federal benefit programs recognize their "marriages". Gay and lesbian advocates vigorously assert that federal Full Faith and Credit principles would force all states to recognize same-sex marriages.

In the past year and a half, at least fifteen states have enacted laws declaring that they will not recognize same-sex marriages. Gay and lesbian advocates are seeking to override those state laws by the manipulation of federal full faith and credit law. DOMA checks that tactic and protects each state's right to resolve the homosexual marriage issue for itself.

ABOUT THE AUTHOR:

Professor Lynn Dennis Wardle joined the faculty of law at Brigham Young University in 1978 and has taught family law, biomedical law, conflict of laws, and other subjects ever since. He received his B.A. from B.Y.U. in 1971 and J.D. from Duke University School of Law in 1974, having served on both the Duke law Journal (editor and staff) and the Moot court board. He clerked for Judge John J. Sirica, U.S. District Court for the District of Columbia, from May 1974 to September 1975, then practiced law with Streich, Lang, Weeks & Cardon in Phoenix, Arizona until July 1978. He was a Visiting Professor at Howard University School of Law (Washington, D.C., 1990-91), a Scholar-in-Residence at U.S. Department of Justice, Civil Division (Washington, D.C.,1989-1990) a Visiting Professor at Sophia University, Tokyo, Japan, 1988 summer), and a Visiting Research Fellow at the University of Aberdeen (Scotland 1985 summer). Professor Wardle currently is the Secretary-General of the International Society of Family Law ( an international learned society), a member of the American Law Institute, and has served in other professional and public interest oranization. He is the lead editor and coauthor of a four-volume treatise, Contemporary Family Law (1988), the sole or lead author of two other law books, twenty-five law review articles or chapters in law books. and author of more than a dozen other scholarly and professional publications. His current research and writing pertains to same-sex marriage and marriage recognition issues, and other family law, biomedical law, and conflicts law topics. He is an Honorary Trustee of the National Lawyers Association.