By now, you've heard that on Wednesday the Supreme Court, by a 5-4 majority, struck down section 3 of the so-called Defense of Marriage Act, or DOMA, as unconstitutional. Section 3 is the part of DOMA that prohibited the federal government from recognizing same-sex marriages, regardless of whether those marriages were legal in the state in which they occurred.
In a little over three weeks, the Supreme Court's decision will become final with the issuance of a mandate (which is just a formality), and the federal government will be required to recognize lawful same-sex marriages and treat them on equal footing with different-sex marriages for all purposes. Because there are more than 1,000 ways in which marital status can affect the application of various federal laws, regulations, and benefits, this is an important development for same-sex couples.
The same Court, by the same 5-4 majority but with a wildly different composition, determined that it did not have jurisdiction to weigh in on California's Proposition 8, which banned the recognition of same-sex marriages by the state government. The district court had issued an injunction against enforcement of Prop 8, at which point state officials elected not to appeal. Their cause was taken up by a group of private citizens who had advocated for Prop 8. Same-sex marriages are expected to resume in California after the issuance of the Supreme Court's mandate, although the 9th Circuit must act to dissolve a stay of the injunction before the injunction can come into force.
For those of you whose eyes glazed over at all of the convoluted legal process, time to re-focus.
These decisions show that the tide has indeed turned for same-sex marriage in the U.S. The argument against DOMA is that it singles out for special, different, and offensive treatment a certain class of otherwise legal marriages.
It is important to recognize that the Court said nothing at all about Section 2 of DOMA, which allows states to decline to recognize same-sex marriages from other states. However, in my considered view, putting on my lawyer cap...it is only a matter of time before Section 2 comes up for review, and when it does, it will have to go down.
(I should really tag this part of the post "GC Explains: the Full Faith and Credit Clause," as part of that recurring feature, but I won't.)
One of the most important features of the Constitution is the Full Faith and Credit Clause, article IV, section 1, which provides:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
What this means is that the things that are done officially by one state--most importantly, the judicial proceedings, but other official acts as well--then the other states must recognize and give force to those acts. Whether marriage is one of those things or not is somewhat an open question. The only other serious legal debate we have ever had about marriage laws was when the "anti-miscegenation" laws of some states prevented them from recognizing different-race marriages performed in other states. Those laws were apparently never challenged on a Full Faith and Credit basis. Ultimately, laws that discriminate against different-race couples were struck down nationwide, in Loving v. Virginia, so there was no longer a need to challenge such laws on a Full Faith and Credit basis.
But I think marriage is one of those things that other states must recognize, and apparently so does the Congress. The Clause gives Congress the express authority to regulate Full Faith and Credit, and Congress used that authority to enact section 2 of DOMA, which is a regulation on Full Faith and Credit.
So, you might ask, doesn't that end the inquiry? If Congress can regulate Full Faith and Credit, doesn't that mean section 2 of DOMA is constitutional?
Not quite. Congress still must provide equal treatment in the laws it prescribes, even under the Full Faith and Credit Clause. (Readers of the Constitution will note that there is no Constitutional provision that expressly hold Congress to that standard, but there is a long line of cases that holds that equal protection is fundamental to the concept of ordered liberty that is inherent in the Constitution, and therefore that the federal government is bound to it implicitly even if it is not explicitly.)
And for the same reason that Section 3 was unconstitutional, so too must section 2.
Without that regulation, states are generally bound to recognize the same-sex marriages performed in states where such marriages are legal. And if they choose not to, well, they are going to have to defend an awful lot of lawsuits that they'll lose because the Fourteenth Amendment is explicit as to the states.
Really, if you take the "same-sex" part out of it, is recognition of marriages from other states something anyone really questions? Since my wife and I were married in 1997, we have moved from Arkansas to Maryland, then to North Carolina, and back to Arkansas. Our Arkansas marriage was automatically recognized as valid by each of the states, without anyone questioning it at all. That is as it should be.
So, for a lot of reasons, I think that the way that same-sex marriage takes hold in states where it is currently illegal is because the courts will strike down section 2 of DOMA, and same-sex couples will travel to states where it is legal to get married and return, asking for (and getting) recognition from their home states. (I am sure that pro-marriage-equality forces are hard at work looking for test cases right now.)
At that point, people will tire of fighting it and realize that the world didn't end because Steve made an honest man out of Adam.
Now, enough law talk. I commented on Facebook Wednesday that yesterday was a red-letter day for all Americans, because we have been made more free. It turns out that Thursday was even better for one American I know, a good friend. My friend is in his 50s and lived all of that time with a pretty big secret that he had worked hard to conceal for most of his life. With the support of some pretty brave people who risked a lot themselves, my friend came out of the closet.
I am happy that he is free.
And I am proud to know him.
And I admire his courage.
And maybe most of all I hope that one day it won't require any sort of courage to come out.