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Interstate Love Song?

June 28, 2011

(Yeah, the title is a bad pun on a rock radio staple.  Sue me.)

The New York Times had an article this morning about the “other” DOMA issue.  It is one I’ve been thinking about since law school.  Mainstream media coverage of legal issues being what it is, I’m not happy with it.  I’ll clarify.

When I say the “other” DOMA issue, I am positioning as the main DOMA issue that there are same sex couples in at least eight states (the six that recognize now — Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and New York– the two that did for a while –California and Maine– and the states that recognize marriages solemnized elsewhere, which is actually kind of a trickier list to construct) who have marriages recognized by the State, but not by the federal government.  DOMA bars federal recognition and denies over 1100 legal rights and recognitions even to those whose home states support their marriage.  Section 3 of DOMA does that.  A federal judge in Massachusetts already ruled it unconstitutional, and this is the part where the Obama Administration refused to defend DOMA and threw it to Boehner and the House Republican leadership, who want it like a bad rash.

The other issue is the one the Times covers, Section 2 of DOMA (full text of DOMA, which isn’t long at all, is here), among the stupidest and most cravenly political acts of a legislature, and that’s saying something.  The Times soft-peddles this.  They do the equivalency thing and say that some people say one thing and some people say different:

But many constitutional law experts argue that the Defense of Marriage Act gave states no more powers than they already had. Tobias Barrington Wolff, a professor at the University of Pennsylvania law school, said, “There’s never been a mandatory obligation on the part of one state to recognize a marriage from another state that would violate local public policy.” Even if the act is overturned or repealed, the effect is not likely to force same-sex marriage upon other states, he said.

*     *     *

If the Defense of Marriage Act is overturned, it is unlikely to change the states’ ability to say no to gay and lesbian marriage — but a more sweeping decision by the United States Supreme Court declaring a constitutional right for same-sex couples to marry would. That is the legal theory behind the challenge in California to that state’s same-sex marriage ban.

What the Times leaves unsaid is that Section 2 of DOMA almost certainly does not affect the outcome either way.  Look at those two things in juxtaposition:  If marriage equality is a fundamental right, as the Perry v. Schwarzenegger case may establish (my guess is five-four, with Kennedy joining the moderate bloc), then like interracial marriage, all laws against are unconstitutional and so is Section 2 of DOMA.  Until the Court decides that — and it will some day, though how long it takes I can’t say — the states already have the option to not recognize marriages that violate their public policy, and DOMA didn’t actually do anything to expand that.  Either way, it’s a nullity. 

I have not heard one cogent argument yet that that section of DOMA actually gave the states any power they didn’t have without it.  Since the issue is the interpretation of the Full Faith and Credit Clause of the US Constitution, ordinary legislation can’t really change the playing field, in fact.  Congress can’t alter the meaning of the Constitition.  Interpreting it is a job for the federal courts.  The only purpose of that section was for appearances, to reassure bigots in conservative states that they could continue to pretend the world wasn’t changing around them.

But it is, and the facts on the ground matter.  It won’t be long before a same sex couple marries somewhere up North where the State recognizes their marriage, settles into careers and such, and then leaves, probably to follow a job.  So many companies have nondiscrimination policies: the couple may go from New York or Boston to Atlanta of Charlotte or Omaha, still getting shared benefits through work, going to the company picnic together and being generally recognized as a married couple.  Then something will happen that makes clear that their new state doesn’t recognize their old marriage.  The story will probably be heartbreaking and evoke compassion for the couple among a public that is increasingly on the right side of this, and it’s against a backdrop like that that states will have to defend their refusal to treat all marriages as real.

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