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

Abstract

Though it is inevitable that the issue of same-sex marriage will come before the Supreme Court, there are several different forms in which that question could arrive. While there could be a direct challenge from individuals in a state that does not permit same-sex marriage, it is equally likely that the challenge would concern interstate recognition of a same-sex marriage that is valid where performed. This latter type of case would invoke the constitutionality of the Defense of Marriage Act (DOMA), which states that no state is required to give full faith and credit to a same-sex relationship "treated as a marriage" under the law of another state. To answer this question, the Court may look directly at the constitutionality of prohibitions on same-sex marriage, because the failure to grant full faith and credit would not be legitimate if it rests on a public policy that is unconstitutional. This Article focuses on a second issue, on which there has been far less scholarly attention, the scope of Congress' authority to enact DOMA under the Full Faith and Credit Clause.

The scope of the "public policy exception" regarding recognition of marriages validly performed in sister states is quite unsettled in Full Faith and Credit jurisprudence. With this backdrop, the question is whether Congress can interpret the Clause in a way that potentially diverges from the view of the Supreme Court. This article explores the boundaries of Congressional power, and whether it may enact legislation that either diminishes or enlarges the constitutional mandates of the Clause, as interpreted by the Supreme Court.

Keywords: Same-Sex Marriage, Full Faith and Credit, Defense of Marriage Act