Defending Marriage in Light of the Moreno-cleburne-romer-lawrence Jurisprudence: Why Doma Cannot Pass Muster After Lawrence

• Publication year: 2022

38 Creighton L. Rev. 421. DEFENDING MARRIAGE IN LIGHT OF THE MORENO-CLEBURNE-ROMER-LAWRENCE JURISPRUDENCE: WHY DOMA CANNOT PASS MUSTER AFTER LAWRENCE

Creighton Law Review

Vol. 38

MARK P. STRASSER(fn*)

INTRODUCTION

Massachusetts now recognizes same-sex marriages and it seems reasonable to expect that the constitutionality of the Defense of Marriage Act ("DOMA")(fn1) will soon be tested.(fn2) Lawrence v. Texas,(fn3) in which the Court recently declared Texas's same-sex sodomy ban unconstitutional, may well play an important role in the analysis of DOMA's constitutionality, since the decision has already been characterized as a watershed in the civil rights movement.(fn4) The focus of this article is on the implications of Moreno-Cleburne-Romer-Lawrence line of cases for the constitutionality of each of DOMA's provisions.

The Defense of Marriage Act has two parts, each designed to perform a different function. One part discusses the full faith and credit obligations of the states with respect to same-sex marriages validly celebrated in other states, while the other part defines marriage for federal purposes. Part I of this article analyzes the full faith and credit provision, exploring some of its ambiguities and describing some of the ways in which it is constitutionally vulnerable. Part II describes the provision defining marriage for federal purposes. This provision is vulnerable for some of the reasons that the full faith and credit provision is vulnerable and for other reasons as well. The article concludes by suggesting that both DOMA provisions should be struck down as violations of constitutional guarantees and that their being struck down would have salutary effects both for those who have celebrated same-sex marriages and, perhaps, for those who have contracted civil unions.

I. THE FULL FAITH AND CREDIT PROVISION

The DOMA full faith and credit provision is deceptively simple. It purports to define the full faith and credit obligations of the states but fails to make clear its purpose or the breadth of its coverage. The construction of the Act will likely be important when courts examine its constitutionality, although some interpretations of article IV jurisprudence and Lawrence itself suggest that the provision may be quite vulnerable to constitutional attack unless it is construed very narrowly indeed.

A. THE TEXT AND PURPOSE OF THE PROVISION

The DOMA full faith and credit provision reads:

No state, territory of 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 such other State, territory, possession or tribe, or a right or claim arising from such relationship.(fn5)

When this bill was debated, members of Congress made clear that by passing this provision they hoped to prevent individuals from marrying their same-sex partners in a state recognizing such unions and then going back to their domiciles demanding that their marriages be recognized.(fn6) It is simply unclear whether members of Congress would have passed DOMA had they understood that domiciliaries cannot evade local marriage law and force their home states to recognize marriages validly celebrated elsewhere by simply crossing a border and marrying in a state recognizing such unions. While a domicile might choose to recognize a marriage validly celebrated elsewhere even though that marriage could not be celebrated within the state,(fn7) the state cannot be forced to do so as a matter of full faith and credit.

Consider Loving v. Virginia(fn8) in which the Court struck down Virginia's anti-miscegenation law. Mildred Jeter and Richard Loving, an interracial couple,(fn9) were domiciled in Virginia.(fn10) They wished to marry but Virginia prohibited their union,(fn11) so they went to the District of Columbia where such marriages could be legally celebrated.(fn12) They married and then returned to Virginia. The Lovings were charged with violating the Virginia law prohibiting interracial marriage.(fn13) They pled guilty(fn14) but later challenged the laws as violating Fourteenth Amendment guarantees.(fn15)

One of the interesting aspects of Loving is that there was no claim that the interracial marriage validly celebrated in the District of Columbia had to be recognized in Virginia because of full faith and credit guarantees. This simply was not even an issue in the case and was discussed neither in the opinion nor in the briefs.(fn16) While the Loving Court did hold that the marriage had to be recognized, that was because no state could preclude interracial marriages rather than because of full faith and credit guarantees.(fn17)

Assuming that the marriage ban at issue does not itself offend constitutional guarantees, courts have long recognized that a state can refuse to recognize a marriage of its domiciliaries if the couple contracted it elsewhere in an attempt to evade local law.(fn18) If the full faith and credit provision of DOMA was merely designed to assure that domiciles would have that power, then this provision may not have changed the full faith and credit obligations of the states.(fn19)

When challenged, DOMA will have to be construed by the courts. That construction might depend, in part, on whether the purpose of the law is to limit the effect of marriages that are celebrated notwithstanding the domiciles' laws precluding such unions or whether, for example, the law is also meant to limit the effect of a same-sex marriage validly celebrated in the domicile at the time of celebration.

Consider a same-sex couple living in Georgia who wishes to marry. Local law declares such marriages void,(fn20) so the couple decides to go to Massachusetts to marry. The couple marries and then goes back to Georgia, seeking to have the marriage recognized locally.

The first difficulty is that such a marriage would not be valid according to Massachusetts law. Just as Massachusetts refuses to recognize its domiciliaries' marriages, even if validly celebrated elsewhere, if those unions are void in Massachusetts,(fn21) Massachusetts refuses to permit marriages to be contracted within the state if those marriages are void in the celebrants' domicile.(fn22)

Suppose, however, that we bracket this difficulty, e.g., by supposing that the relevant Massachusetts statute had been repealed. Even so, Georgia could refuse to recognize the marriage and, indeed, could refuse to recognize any rights or obligations arising out of the marriage. Because Georgia domiciliaries had attempted to evade local law, the state would be under no obligation to recognize the marriage or the rights or obligations arising therefrom. This describes the law and practice existing both before and after DOMA's passage.

Suppose that a more difficult case is considered. A same-sex couple domiciled in Massachusetts marries in accord with local law. They plan to live in Massachusetts but, because of an employment opportunity, decide to move to Georgia. It then becomes important for some reason to establish the validity of the marriage.

This case does not involve a couple domiciled in one state attempting to evade local law by marrying where such marriages could be celebrated legally. On the contrary, the couple planned to live within the state where such marriages were legal.

It is unclear whether the DOMA full faith and credit provision was intended to reach this second kind of case. Both the First and the Second Restatement of the Conflicts of Law suggest that a marriage valid in both the states of celebration and domicile at the time of the marriage is valid everywhere.(fn23) If DOMA was merely intended to "reaffirm[] current practice and policy,"(fn24) then it would only address marriages not valid in the domicile at the time of celebration.

Yet, the language of the Act does not specify any limitations. On its face, this DOMA provision would not only permit an after-acquired domicile to refuse to recognize a marriage valid in the states of celebration and domicile at the time of the marriage, but would also permit a state to refuse to recognize a same-sex marriage of individuals who are merely traveling through a state.(fn25) We shall simply have to wait until this provision is authoritatively construed.

The constitutionality of this DOMA provision may well depend at least in part upon that construction. If it is construed narrowly and thought not to change current law, then it will not be subject to certain objections, e.g., that Congress does not have the power to decrease full faith and credit.(fn26) If it is construed very broadly so that a same-sex marriage would not have to be recognized by a state even if, for example, a couple was merely passing through the state, then the provision would seem most vulnerable to constitutional attack. An historical example involving interracial marriage will help illustrate one of the reasons that such a broad statute might not pass constitutional muster.

In Ex parte Kinney,(fn27) a federal district court upheld Virginia's anti-miscegenation law.(fn28) However, the court noted, "That such a citizen would have a right of transit with his wife [of another race] through Virginia, and of temporary stoppage, and of carrying...