The Retreat from Doma: the Public Policy of Same-sex Marriage and a Theory of Congressional Power Under the Full Faith and Credit Clause

• Publication year: 2022

38 Creighton L. Rev. 507. THE RETREAT FROM DOMA: THE PUBLIC POLICY OF SAME-SEX MARRIAGE AND A THEORY OF CONGRESSIONAL POWER UNDER THE FULL FAITH AND CREDIT CLAUSE

Creighton Law Review

Vol. 38

EMILY J. SACK(fn*)

I. INTRODUCTION

In a 1980 case rejecting the right to same-sex marriage, the court concluded:

[T]he time may come, far in the future, when contracts and arrangements between persons of the same sex who abide together will be recognized and enforced under state law . . . [b]ut in my opinion, even such a substantial change in the prevailing mores would not reach the point where such relationships would be characterized as 'marriages.'(fn1)

That point was reached a mere twenty-three years later when Massachusetts' highest court held that the prohibition on same-sex marriage violated due process and equal protection rights under the state Constitution.(fn2) In the aftermath of the Goodridge decision, other state courts have begun to consider similar cases.(fn3) While the potential impact of such a ruling has been anticipated and discussed for several years, these discussions have now moved beyond the hypothetical. With vast differences in state policies and laws, as well as federal legislation on the subject, it is only a matter of time before the same-sex marriage issue comes before the United States Supreme Court.

There are several different contexts in which the question of the right to same-sex marriage could arrive at the Court. There could be a direct challenge from individuals in a state that does not permit same-sex marriage, arguing that the prohibition violates the right to substantive due process or equal protection under the federal Constitution. Equally likely, however, would be a challenge concerning interstate recognition of a same-sex marriage. With a sister state now granting couples access to same-sex marriages, the Full Faith and Credit Clause would generally require recognition of these marriages in all other states.(fn4) In this situation, a same-sex couple legally married in Massachusetts may bring a constitutional challenge if another state refuses to recognize the marriage or an incident of the marriage under the "public policy exception" to the Full Faith and Credit Clause.(fn5)

This latter type of case would invoke the constitutionality of federal legislation regarding the interstate recognition of same-sex marriage, the Defense of Marriage Act ("DOMA").(fn6) DOMA states that no state "shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship be-tween persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship."(fn7) The statute was designed to permit states to refuse to give full faith and credit to same-sex marriages performed in any state that might recognize these marriages as valid.

A consideration of the constitutionality of DOMA by the Court raises at least two issues. First, the Court may examine the constitutionality of prohibitions on same-sex marriage, in the context of federal legislation that permits states to invoke their own public policy and refuse to grant full faith and credit to such marriages from other states. This failure to grant full faith and credit would not be legitimate if it rests on a public policy that is unconstitutional.

However, even if prohibitions on same-sex marriage, and therefore public policy supporting these prohibitions are not unconstitutional, the Court may examine a second constitutional issue concerning DOMA. The Court may analyze the authority of Congress to enact DOMA under the Full Faith and Credit Clause. The Court first would examine the scope of the "public policy exception" regarding recognition of marriages validly performed in sister states. This question has been quite unsettled in Full Faith and Credit jurisprudence. In particular, the Court would focus on the states' use of the public policy exception to refuse to recognize same-sex marriages from other states. This examination of the scope of the public policy exception would lead to an analysis of Congress' power to legislate under the Full Faith and Credit Clause. The question is whether Congress can interpret the Clause differently than the Supreme Court and enact legislation that either diminishes or enlarges the constitutional mandates of full faith and credit. Let's assume, arguendo, a Court ruling that under the Full Faith and Credit Clause of the Constitution, one state can not invoke a public policy exception to deny recognition to same-sex marriages validly celebrated elsewhere. Would Congress have the power to make different decisions about Full Faith and Credit - i.e., the Defense of Marriage Act - in the face of a contradic-tory ruling by the Court? Does Congress have plenary power to reduce (or expand) Full Faith and Credit mandates of the Constitution, as interpreted by the Supreme Court?

The constitutionality of DOMA was hotly debated when it was first under consideration. However, when an amendment to the state Constitution mooted the issue of same-sex marriage in Hawaii, the issues of DOMA and interstate recognition of same-sex marriage subsided. The Goodridge decision, as well as Lawrence v. Texas,(fn8) have rekindled interest in these issues, and make their consideration by the Supreme Court a strong possibility. This Article examines the issue of same-sex marriage from the perspective of interstate recognition, and analyzes whether a state could constitutionally refuse to grant full faith and credit to a same-sex marriage validly performed in another state.

In Part II of this Article, I examine the constitutionality of laws barring same-sex couples from marriage, to determine if a state's use of a public policy exception to refuse to recognize a same-sex marriage from another state would be constitutional. I examine both the substantive due process and equal protection arguments challenging the constitutionality of prohibitions on same-sex marriage. In this Part, I conclude that while the constitutional argument is quite strong, there is room for the Court to uphold the constitutionality of such prohibitions. A state's use of a public policy exception opposing same-sex marriage in order to deny full faith and credit to an out-of-state same-sex marriage, then would not be clearly unconstitutional. Therefore, in turn, DOMA would not be clearly unconstitutional by permitting states to invoke this public policy exception. In Part III, I begin the analysis of a second constitutional challenge to DOMA relating to the scope of congressional power to legislate under the Full Faith and Credit Clause. I review the law of the public policy exception to the Full Faith and Credit Clause, and focus on the interstate recognition of marriages. I then hypothesize a Supreme Court ruling that limited the scope of the public policy exception regarding same-sex marriage. In Part IV, I analyze the boundaries of Congress's authority to legislate in the area of Full Faith and Credit, and focus on the constitutionality of DOMA in the face of such a hypothetical ruling by the Court. I conclude in this Part that Congress cannot enact legislation in direct conflict with a ruling by the Court interpreting the mandates of the Full Faith and Credit Clause. Therefore, if a Court decision were to create such a conflict, DOMA would be unconstitutional as beyond the scope of congressional power.

In Part V, I conclude that a decision by the Supreme Court on the constitutionality of same-sex marriage may be inevitable in the wake of Goodridge. However, that decision may come in the form of a Full Faith and Credit issue. The constitutionality of the "public policy exception" to interstate recognition of marriage, as well as the limits of congressional power to legislate under the Full Faith and Credit Clause, may be the issues on which the Court focuses when considering same-sex marriage.

II. THE CONSTITUTIONALITY OF PROHIBITIONS ON SAME-SEX MARRIAGE

While the Full Faith and Credit Clause generally requires one state to recognize the valid marriages of all other states, a state with sufficient connection to the parties may refuse to grant such recognition if it would violate its own strong public policy.(fn9) The federal DOMA explicitly permits states to refuse such recognition to same-sex marriages performed in other states, as well as any collateral incidents of the marriage.(fn10) However, if any prohibition on same-sex marriage were unconstitutional, then by necessity a public policy supporting such a prohibition would be unconstitutional as well. In turn, DOMA, federal legislation permitting such a public policy exception to full faith and credit, would be unconstitutional. Therefore, we must start by examining the arguments supporting a constitutional challenge to a prohibition on same-sex marriage.

A. SUBSTANTIVE DUE PROCESS

An obvious argument in support of the claim that refusal to recognize same-sex marriage violates substantive due process, is that the right to marry is a fundamental right.(fn11) Such a right receives heightened protection from state interference under the Due Process Clause, and a denial of this right to same-sex couples should be analyzed under the strict scrutiny standard, to determine if the prohibition is "narrowly tailored to serve a...