The Defense of 16
Running head: THE DEFENSE OF MARRIAGE ACT
The Defense of Marriage Act Should Be Overruled by the U.S. Supreme Court: Analysis of Equal Protection and Full Faith and Credit Clauses of the U.S. Constitution
Cornell College
Abstract
This paper seeks to analyze the 1996 Defense of Marriage Act (DOMA) under the purview of constitutional law. It demonstrates how DOMA should be overruled on grounds of constitutionality. This is seen through both Equal Protection and Full Faith and Credit analysis. I explore how precedent evokes a substantive argument for overruling DOMA, as well as issues that would arise from doing so and how they should be addressed. Additionally, strict scrutiny review is exercised to demonstrate the unconstitutionality of DOMA. The impact of court cases such as Varnum v. Brien are examined and issues of inconsistency are analyzed. Public health analysis also leads to the conclusion that same-sex marriage should be legalized.
The Defense of Marriage Act Should Be Overruled by the U.S. Supreme Court: Analysis of Equal Protection and Full Faith and Credit Clauses of the U.S. Constitution
I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. Especially if it denies people's civil rights. I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about. –Mildred Loving, June 12, 2007.
In light of that statement regarding same-sex marriage, we see that this contentious debate is not a new one. The U.S. Supreme Court first addressed the institution of marriage in Griswold v. Connecticut (1965), in which they posited:
We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Indeed, marriage as an institution reaches far back into time, beyond the duration of our own government and U.S. Constitution. As one of the most frequently contested issues in the United States today, marriage carries with it a plethora of issues and conflicts. Clearly Griswold was not about same-sex marriage, and neither was a subsequent case, Loving v. Virginia (1967). In Loving (1967), the U.S. Supreme Court articulated:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival....To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
The combination of these two cases established the right to marry as a fundamental right. They established this using equal protection analysis. This is stated in the Constitution, guaranteed in the Fourteenth Amendment, “No State shall…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law” (U.S. Const., amend. XIV, § 1). It is in the spirit of that dictumthat we come to the issue at hand: The issue of same-sex marriage.
There has been no U.S. Supreme Court decision regarding same-sex marriage, nor has there been any constitutional amendment either prohibiting or allowing such an institution. However, in 1996, President Bill Clinton signed into law the Defense of Marriage Act (DOMA). This Act was passed in light of a pending decision by the Hawaii Supreme Court. In effect the Act nullifies federal recognition of State issued marriage licenses between same-sex partners and also instructs States that they are not required to recognize such marriage as would be provided under the Full Faith and Credit Clause of the U.S. Constitution. It is my conclusion that the U.S. Supreme Court should declare the 1996 Defense of Marriage Act unconstitutional based on analysis with respect to the Full Faith and Credit and Equal Protection Clauses of the U.S. Constitution.
The following paragraphs will discuss a myriad of reasons why DOMA should be overruled based on a variety of grounds including but not limited to full faith and credit, equal protection, public interest, and judicial consensus. DOMA is a relatively new piece of legislation, having been passed only about a decade ago. DOMA came about as a result of the case of Baehr v. Miike (1996). On December 17, 1990, Ninia Baehr et al. filed suit after having civil marriage licenses denied to them on the basis that they were all same-sex couples. Judgment in favor of the defendant was entered on October 1, 1991, and the plaintiffs appealed to the Supreme Court of Hawaii. The Supreme Court of Hawaii reversed the lower court’s decision in 1993 and declared that under strict scrutiny analysis a statute prohibiting marriage on same-sex grounds was unconstitutional. The case was remanded to the lower court which was ordered not to bar issuance of marriage licenses on basis of sex. The Hawaii legislature, in response, passed an amendment to the Hawaii Constitution on April 29, 1997, which reserved marriage to opposite sex couples. Upon appeal of the case once more to the Supreme Court of Hawaii by the defendant, the Court reversed its decision on the basis of the new amendment therefore invalidating the plaintiffs’ complaint (Baehr v. Miike, 1996).
The 1996 Defense of Marriage Act
Public Law 104-199, otherwise known as the Defense of Marriage Act, was enacted by the 104th Congress on Sept. 21, 1996. This Act is actually quite brief and revises Title 28 of the United States Code so that:
No State, territory or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same-sex that is treated as a marriage under the laws of any other State, territory, possession, or tribe, or a right to claim arising from such relationship.
This in effect supersedes and/or preempts the Full Faith and Credit Clause of the U.S. Constitution, effectively allowing a State to refuse to recognize a marriage license from another state if it should so choose. The guiding principle behind such a change is because otherwise once a state like Massachusetts recognizes same-sex marriage, essentially all of the other 49 states are required to do so by the Full Faith and Credit Clause of the U.S. Constitution, which holds that, “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” (U.S. Const., art. IV, § 1). In order to nullify such constitutionally mandated recognition of marriage, the Act was passed.
In addition to the above provision, the Act also redefines on the national level what a marriage is. The Act amends Title 1 of the U.S. Code so that:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers to only a person of the opposite sex who is a husband or wife” (Defense of Marriage Act, 1996).
This effectively achieves two objectives. First, it limits marriage at the federal level to that between a man and a woman, and secondly it ensures that states are not compelled to recognize any same-sex marriage under the above definition due to transference under Full Faith and Credit.
Without getting into deep legal arguments about the legality or underlying issues with DOMA, a surface level analysis reveals several key issues which are immediately important for purposes of analysis. First, that such an Act of Congress inherently places same-sex marriage in the national and/or federal view. Secondly, that such an Act clearly seeks to prevent an obvious outcome: same-sex marriage. Third, that such an Act incontrovertibly seeks to apply the rule of law to a discrete group of persons: homosexuals. Fourth, that the Act, while not making same-sex marriage illegal outright, certainly seeks to place an obstacle in the way of those seeking such a union. Finally, as Theresa Goulde, J.D. Candidate at Tulane University Law School observes, “Congress enacted DOMA both to preserve the heterosexual definition of marriage and to advance the government’s interest in defending traditional, Judeo-Christian moral norms” (Goulde, 2005, p. 197).
Judicial precedent effects a substantive argument in favor of same-sex marriage.
Jurisprudentially speaking, there is a clear argument to be made in favor of same-sex marriage. Examination of the case law provides a clear and concise legal framework for an argument in favor of same-sex marriage. The most obvious precedent is Loving v. Virginia (1967). This is the key case in which equal protection of the law is extended to prevent discriminatory exclusion of marriage based on race. The case involves a white male who married a black female in Washington, D.C., but then elected to return to Virginia to reside. They were then convicted under Virginia statute for violating the anti-miscegenation laws within the Virginia Code. The Court ruled that the law was unconstitutional under purview of the Equal Protection Clause of the Fourteenth Amendment. Even though the statute applied equally to whites and blacks, the U.S. Supreme Court still struck it down on the ground that it was forbidden to deny the right to marry, which the Court articulated was a fundamental right, based solely on classifications.
The decision preceding Loving is that of Griswold v. Connecticut (1965). In Griswold
(1965), a statute held that it was a crime to use “any drug, medicinal article or instrument for purpose of preventing conception,” and Estelle Griswold and Lee Buxton, who dispensed information, instruction and medical advice to married couples about birth control, were charged for violating that statute as an accessory to that offense. The Supreme Court articulated that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” It is these “penumbras” which are then explained as “zones of privacy” later invoked in Roe v. Wade (1973). In Griswold (1965), the Court further concluded, “Such a law cannot stand in light of the familiar principle, so often applied by the Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms’ NAACP v. Alabama 377 U.S. 288, 307.”
Taken together, these two cases establish as fundamental judicial principle that marriage is in fact a fundamental right, which cannot be abridged by state statute regarding race nor invaded by governmental interests involving contraception. This establishes marriage as a fundamental right and a protected institution under constitutional law. There are two more cases which require attention. The first of these is merely to act as a reference point for the second.
These cases are Bowers v. Hardwick (1986) and Lawrence v. Texas (2003), respectively. In Bowers (1986), two men were charged with violating a Georgia statute prohibiting consensual sodomy, which they had obviously engaged in. The Court, rejecting the plaintiffs’ argument that their constitutional rights to privacy and association were violated by the statue, upheld the law. The Court held that, in blatant disregard to the constitutional issues at hand, there was no constitutional right to consensual homosexual sodomy. This ruling was then completely overturned nearly two decades later in Lawrence (2003).
While also about sodomy statutes, Lawrence (2003) overruled Bowers (1986) because “its continuance as precedent demeaned the lives of homosexual persons” (Lawrence v.
Texas, 2003). The Court, citing Casey, asserted that “Our obligation is to define the liberty of all, not to mandate our own moral code,” and “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter” (Lawrence v. Texas, 2003). It also held that “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and the private spheres” (Lawrence v. Texas, 2003). The final holding and directive of the Supreme Court in Lawrence was very clear: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” (Lawrence v. Texas, 2003). The Court succinctly upholds both privacy and a right to due process simultaneously as they apply it in Lawrence.