Why doesn't the defense of marriage act violate the full faith and credit clause in the constitution.?

Favorite Answer

I'm a Lawyer. In states where I am licensed, I can practice and earn a living as an Attorney. If I do so in states where I am not licensed, I have a problem. Other states do not have to honor my license (and other professions are in the same boat), as it is a license to practice only within the state that grants it. This is so regardless of whether I can otherwise meet the criteria of licensure, the fact is that I am not licensed elsewhere, and cannot act as if I am.

The Full Faith and Credit Clause refers to the acts of States. A license given by a state to do something within that state does not fall into the category as "an act of the state". It's PERMISSION to the grantee to act, which is very different. Even your license to drive in State A, which will be honored in every other state, will NOT be valid a set time (30 days, usually) after you move to another state.

What Full Faith and Credit is about is mostly court decisions or decrees, and not even all of those are fully protected. If a Plaintiff gets a judgement from a Defendant, another state is bound to enforce it if correctly demanded under the appropriate rules of procedure. However, if the whole trial underlying the judgement was done without proper jurisdiction, the Defendant can demand that the Plaintiff's judgement NOT be honored, and force the Plaintiff to sue him again in the state where he is now. Criminal Defendants are generally extradited to a state where they are charged or already sentenced, but Full Faith and Credit isn't a slam-dunk. If a person is awaiting trial in New Mexico for Murder, he's unlikely to be extradited to Ohio for Jaywalking.

Honoring marriage isn't even as absolute as people assume. If a person legally marries a person aged 17 in a state where the age of consent is 16, and goes on a honeymoon in a state where the age of consent is 18, they CAN be tried for statutory rape. Similarly, states do not have to honor marriages that are otherwise illegal in their own state for some other reason like being too closely related.

DOMA is not only Constitutional, it's actually redundant....Show more

Individual states govern the law of marriage. Marriage is not mentioned in the US constitution. An amendment was introduced to the House that a marriage is a civil union between a man and woman only....Show more

Two Supreme Court cases severely weaken the case for DOMA. In Romer v. Evans (1996), the Court declared a state constitutional amendment unconstitutional because it was “born of animosity” toward homosexuals and thus violated equal protection under the U.S. Constitution. In Lawrence v. Texas (2003) the Court stated that all individuals have a due process right to “seek autonomy” in their private relationships, including “personal decisions relating to marriage.” In his dissent, Justice Scalia warned that Lawrence “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”

As far as states passing their own version of DOMA, states already have public policy exceptions to the full faith and credit clause in the Constitution. These were enacted to avoid recognizing common law marriages....Show more

Ruth, exactly when and in what SCOTUS case was the DOMA struck down as unconstitutional? Enlighten me, I'd love to know.

Please, for the love of God, STOP disseminating erroneous information on here. SCOTUS has declined to review any cases involving DOMA, so DOMA is still in force.

The only rationale upon which DOMA would be held not to violate the FFC clause is the public policy exception historically recognized by the Supreme Court, in which states are not required to enforce judgments of other states if that judgment would contravene its own statutes or public policy.

As one would expect, about the only instances in which this public policy exception has been applied have been in the case of marriage issues, such as common law marriage and consanguinity (marriage to blood relatives).

The real question is, does the public policy withstand scrutiny when a violation of the 14th Amendment is shown on its face?

One could argue that since the public policy has held up in cases of consanguinity, it should hold up in the case of gay marriage as well.

However, imo that line of cases will soon be viewed much as the Dred Scott and "separate but equal" cases are now viewed, as antiquated products of an earlier bigoted age....Show more

Because the DOM act specifically states it is not subject to the Full Faith and Credit clause. They put that in to head off problems, but it is definitely challengeable. The Supremes may have a problem with one Act arbitrarily discounting part of our Constitution to make itself viable....Show more