The Defense of Marriage Act (DOMA) purports to do two things that are subject to constitutional challenge. First, it declares that the federal government and its agencies will recognize only serial marriages between one man and one woman. It places no limit on the number of times these folks can divorce and remarry, the Biblical admonitions to the contrary notwithstanding. Matthew 5:31 and 19:9; Mark 10:11; Luke 16:18. God knows so-called “Christians,” and at least one candidate for President, have been ignoring those admonitions with a vengeance. The challenge there is based on equal protection, due process, and privacy grounds—primarily equal protection.
Second, DOMA declares that the individual states—despite the Full Faith and Credit Clause of the US Constitution—are not required to recognize lawful marriages performed in another state. The obvious basis for challenge is taught in fifth grade that the Congress lacks the power to amend or over-ride the provisions of the US Constitution.
It’s no wonder that the Obama Administration, led by a constitutional scholar, has declined to defend DOMA in the federal courts.
Those two key provisions conspicuously do not declare void, or purport to infringe upon the right of any state to legalize, marriages between adults of the opposite or of the same gender. As a result, the complete repeal of DOMA would leave in place the lawfully performed marriages performed for same-gender couples. That in turn, would set up a Full Faith and Credit Clause attack against any state that declined thereafter to recognize such marriages lawfully performed in whatever state.
Interestingly, the Full faith and Credit Clause does allow one circumstance in which a state is not historically required to recognize the laws of the other states. When a foreign state’s laws violate the fundamental public policy of a state as expressed in its criminal laws, that state is not required to give the foreign law recognition. So, for example, if Nevada allows lawful prostitution (which it does), a pimp and prostitute driving across Iowa could not resort to the Iowa courts to sort out a dispute over the division of proceeds. Prostitution is a crime in Iowa. Similarly, if Utah were to legalize polygamy, Iowa courts would not get involved in sorting out domestic issues with such unions. Polygamy is a crime in Iowa. Iowa courts would not have to recognize a marriage between siblings even if that were legal somewhere. Incest is a crime in Iowa.
Thanks to Lawrence v. Texas, sodomy laws that would make same-gender intimacy a crime were struck down in all of the states where such laws were still on the books. Paradoxically, one of the dissenting justices in that case was right when he forecast that the decision would open the door to recognition of gay marriages. It was as if he were “reading ahead of the class.” Because same-gender intimacy, that is inherent in same-gender marriage, is no longer a crime in any state—and cannot be made so—this potential exception to the applicability of Full Faith and Credit Clause does not apply. If DOMA goes in its entirety, legally performed marriages of same-gender couples will be and remain legal and will, almost certainly, be recognized by all states (absent an amendment to the US Constitution).
