Questions About Same Sex Marriage and DOMA

The noted copyright theorist Siva Vaidhyanathan asks whether if the Massachusetts courts hold that the state may not refuse marriage to same sex couples, this will have ramifications around the country under the federal constitution. The answer is that the decision would probably be rendered under the Massachusetts constitution, and therefore would not directly affect the construction of the Federal Constitution. If for some reason the Federal Constitution were invoked as a justification, the court will probably also find independent grounds under the Massachusetts Constitution to prevent an appeal to the U.S. Supreme Court.

Siva's other question has to do with the effect of the Defense of Marriage Act (DOMA) and Article IV of the U.S. Constitution. The Defense of Marriage Act is designed to alleviate any responsibility that other states might have for recognizing same-sex marriage if one state legalizes it.

Siva wants to know if the Privileges and Immunities Clause of Article IV, section 2 would require states to recognize same sex marriages despite DOMA.

The Privileges and Immunities Clause of Article IV, section 2 does not apply because a state that does not recognize same-sex marriage is not treating outsiders from other states differently than it treats its own citizens, who cannot engage in same-sex marriages.

It is more likely that if DOMA is unconstitutional it is because of the Full Faith and Credit Clause of Article IV section 1, which provides that "Full Faith and Credit shall be given in each State to the public Acts, and Records, and judicial Proceedings of every other State." Although the Supreme Court has held that divorces are "judgments" that must be recognized in all states, unless the state of divorce lacked subject matter jurisdiction, Williams v. North Carolina, 317 U.S. 287 (1942), it has never held the same for marriages. However, marriages are arguably "acts" or "records" for Full Faith and Credit Purposes. If so, then one important question is whether the Clause means what it says or whether states may refuse to give recognition to marriages that violate their public policy. This question is unsettled.

Assuming that marriages are "acts" and that there is no public policy exception, then DOMA arguably allows States to refuse to give effect to rights protected by Article IV of the Constitution, and is therefore unconstitutional. Nevertheless, the next sentence of Article IV, section 1 states that "And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." Supporters of DOMA could argue that Congress is merely refusing to give effect to same-sex marriages or other forms of domestic partnership. The problem with this argument is that if Congress can by legislation let states refuse to give same-sex marriages any effect at all, (as to opposed to specifying the nature of the effect) it has undermined the purpose of the Full Faith and Credit Clause. This question is also unsettled. Congress has invoked its powers under the Clause to require states to give effect to certain judgments (e.g., child support judgments) but the question is whether it may permit states to refuse to give any effect at all to out of state judgments.