Friday, May 11, 2012

Forgetting DOMA

On Wednesday, President Barack Obama endorsed marriage equality. While his endorsement has been much touted, it strikes this observer as something of a half-measure. The President staked out a "personal" position and does not believe the federal government should get involved but, rather, the regulation of marriage should continue to be--as it has always been--a matter of state regulation. He highlighted both of these as well as his administration's refusal to enforce one of the provisions of the Defense of Marriage Act. But juxtaposing DOMA and the President's belated acceptance of the need for same-sex marriage is revealing.

DOMA contains two important provisions. One--the one the President does not enforce--defines marriage for federal purposes as that between a man and a woman. The other, more important provision, exempts states from extending "full faith and credit" to same-sex marriages that are valid in the states in which they are entered. It is this provision--and the failure of the Obama administration to move for its repeal--that undermines the importance of President Obama's personal belief that homosexuals should enjoy equal rights. You see, the U.S. Constitution contains the Full Faith & Credit Clause (Art. IV, Sec. 1), which requires each state to give "full faith & credit" to the public acts of each other state. FFC means that should I sue you in Virginia and win a money judgment, that judgment must be enforced against you by Mississippi. Similarly, should I validly marry in Rhode Island, New York must recognize that marriage. The Constitution also empowers the Congress to regulate the implementation of FFC. Enter DOMA. 

The genius of the second provision of DOMA is that it turns FFC on its head. Whereas, prior to DOMA, should same-sex marriage have become legal in Massachusetts, then every other state would have to recognize as valid all same-sex marriages entered into in Massachusetts. The impact of this is, basically, that with a few provisos, a handful of states could have effectively forced upon the whole of the United States recognition of same-sex marriage. What DOMA does is nullify the power of FFC, leaving us with a state-by-state fight for equal civil rights for homosexuals. In effect, DOMA's architects have perverted both FFC and the notion of states' rights. It is stunning, really. More importantly, the federal government has no role in enforcing this provision of DOMA. Thus, the President's "refusal to enforce DOMA" does nothing at all to change the state of marriage disability for same-sex couples.

So, this observer gives the President credit for coming out in favor of same-sex marriage. Doing so from his podium lends it incredible weight and import. But, until the administration pressures its allies in Congress to repeal DOMA's FFC provision, the endorsement can be little more than a half-measure.

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