Even if individual state DOMAs (the federal DOMA is still problematic) are held constitutional based on the so-called “Public Policy“ exemptions, they can still be struck down because they violate the of Due Process and Equal Protection clauses of the US Constitution.

As marriages are considered contractual agreements and not the result of court proceedings (such as adoption — which clearly fall within the scope of the Full Faith and Credit Clause), then the best approach to overturning DOMA would be to challenge it on Due Process and Equal Protection grounds.

The decision in Loving -v- Virginia, in which the US Supreme Court overturned interracial marriage bans in various states, was based on the aforementioned protections guaranteed in the US Constitution, the Fourteenth Amendment, and not on the Full Faith and Credit Clause.

I think that approach would be best, and it could lead to striking down all other existing laws that discriminate against people based on their sexual orientation.

By the way, in Lawrence -v- Texas, this could have already been accomplished if the court ruling, which struck down the sodomy laws across the US, was based solely on a strict interpretation of the Fourteenth Amendment and not on some convoluted reading of the ambiguous “Liberty Clause“ of same amendment which gave the court wiggle-room on not expanding the rights of homosexuals to be on par with those of heterosexuals in all things — without exception. Although, there could have been unintended consequences if Justice O’Connor would have prevailed in her argument that it was an Equal Protection case . Apparently, she was still trying to justify her vote in upholding the sodomy laws earlier in Bower -v- Hardwick.

If O’Connor argument would have won over the court we still could have sodomy laws (as long as it applied equally to both heterosexuals and homosexuals) and, ironically, forced recognition of same-sex marriage in all fifty states. What a legal nightmare that would have been. For example: you could be legally married in Texas as a same-sex couple but you would not be able to consummate the marriage without breaking the state law which could still outlaw sodomy (as long as it applied to both heterosexuals and homosexuals) — leaving, of course, homosexuals with no physical expression to their intimate relationships at all.

Both fortunately and unfortunately, because the court limited the ruling to just the sodomy statues and then declared that those sodomy laws (as regards to consenting adults) were unconstitutional, and not in just their application to a certain group or groups, then that still left open to constitutional review all other laws that discriminate against homosexuals such as in Housing and Job Discrimination, DADT, DOMA, and a host of others equal protection arguments.

Now, we need a concise and final determination from SCOTUS that asserts that all Americans, regardless of Religion, Gender, Political Affiliation, Nationality and Sexual Orientation, etc., are entitled to the same, unabridged, constitutional guarantees and protections by the same degree and equal application of laws that pertain to all citizens of the United States of America — without exception.

I believe our day will come. Common human decency has a way of waking up from its sleep of complacency and doing the right thing when you least expect it. In spite of everything, I have faith in what is still good in people — as strained as it is from time to time.

…So, I remain hopeful.

© Bud Evans

“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.”

This means that Congress may by law determine which acts will be recognized and how they will be recognized. Therefore, DOMA is unfortunately constitutional under the Full Faith and Credit Clause. The Supreme Court could however strike it down on the basis that it violates’ gays’ and lesbians’ right to equal protection under the law, which is guaranteed by the 14th Amendment.

Even if individual state DOMAs (the federal DOMA is still problematic) are held constitutional based on the so-called “Public Policy“ exemptions, they can still be struck down because they violate the of Due Process and Equal Protection clauses of the US Constitution.

As marriages are considered contractual agreements and not the result of court proceedings (such as adoption — which clearly fall within the scope of the Full Faith and Credit Clause), then the best approach to overturning DOMA would be to challenge it on Due Process and Equal Protection grounds.

The decision in Loving -v- Virginia, in which the US Supreme Court overturned interracial marriage bans in various states, was based on the aforementioned protections guaranteed in the US Constitution, the Fourteenth Amendment, and not on the Full Faith and Credit Clause.

I think that approach would be best, and it could lead to striking down all other existing laws that discriminate against people based on their sexual orientation.

By the way, in Lawrence -v- Texas, this could have already been accomplished if the court ruling, which struck down the sodomy laws across the US, was based solely on a strict interpretation of the Fourteenth Amendment and not on some convoluted reading of the ambiguous “Liberty Clause“ of same amendment which gave the court wiggle-room on not expanding the rights of homosexuals to be on par with those of heterosexuals in all things — without exception. Although, there could have been unintended consequences if Justice O’Connor would have prevailed in her argument that it was an Equal Protection case . Apparently, she was still trying to justify her vote in upholding the sodomy laws earlier in Bower -v- Hardwick.

If O’Connor argument would have won over the court we still could have sodomy laws (as long as it applied equally to both heterosexuals and homosexuals) and, ironically, forced recognition of same-sex marriage in all fifty states. What a legal nightmare that would have been. For example: you could be legally married in Texas as a same-sex couple but you would not be able to consummate the marriage without breaking the state law which could still outlaw sodomy (as long as it applied to both heterosexuals and homosexuals) — leaving, of course, homosexuals with no physical expression to their intimate relationships at all.

Both fortunately and unfortunately, because the court limited the ruling to just the sodomy statues and then declared that those sodomy laws (as regards to consenting adults) were unconstitutional, and not in just their application to a certain group or groups, then that still left open to constitutional review all other laws that discriminate against homosexuals such as in Housing and Job Discrimination, DADT, DOMA, and a host of others equal protection arguments.

Now, we need a concise and final determination from SCOTUS that asserts that all Americans, regardless of Religion, Gender, Political Affiliation, Nationality and Sexual Orientation, etc., are entitled to the same, unabridged, constitutional guarantees and protections by the same degree and equal application of laws that pertain to all citizens of the United States of America — without exception.

I believe our day will come. Common human decency has a way of waking up from its sleep of complacency and doing the right thing when you least expect it. In spite of everything, I have faith in what is still good in people — as strained as it is from time to time.

…So, I remain hopeful.

© Bud Evans

http://rainfish2000.blogspot.com

“The Defense of Marriage Act (DOMA), signed by President Bill Clinton, specifically prohibits the full faith and credit from applying to marriages in other jurisdictions. Otherwise, the full faith and credit clause of the US Constitution applies to all other judgments of Courts in other jurisdictions. Same sex marriage is NOT prohibited by the Constitution; it is prohibited by DOMA.”

Please help me understand – how can a clearly UN-Constitutional law be put in place, merely by adding words to the effect that “The U.S. Federal Constitution does not apply to this U.S. Federal law, nor to the citizens affected by it.”???

How can the Full Faith & Credit Clause apply to the Lovings’ inter-racial marriage, but not mine???

Very curious.