Is the Defense of Marriage Act unconstitutional?

[A18]

I vote No.

From the Constitution: 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.

If we are to take the view that any "act, record, or judicial proceeding" of any state has to be valid in every other state, then first of all, what is the purposes of this second sentence?

More important is to realize that we have in effect allowed every state legislature to pass laws for other states. How about a license to do drugs or a license to kill people?

It seems to me that "full faith and credit" to the public Acts, Records, and judicial Proceedings means not denying something on the basis that it was issued by another state.

In other words, if two women are 'married' in Massachusetts, Ohio cannot refuse to recognize that marriage on the basis that they were married in Massachusetts, but it can on the basis that they don't honor same sex unions in their state.

[The Duke]

I'd say the second sentence means Congress can prescribe the manner in which states deal with each others laws, not that they can entirely invalidate the first sentence on a whim.  If Congress can, by simple majority, over ride the first sentence, what's the point of having that first sentence?

And states can't legalize drugs because Congres and only Congress can regulate interstate commerce.  You can't, as a state, override federal supremecy.

[A18]

That depends on what you consider "full faith and credit." That sounds to me like recognizing something as valid, as in having taken place, and been certified by the state, which is then just as if it had been certified by your state.

But each state should be able to decide how to deal with its own records, and those of other states, provided that they do not discriminate between them based on what state sanctioned this marriage / issued this license / etc.

Constitutionally (I don't know what the SCOTUS ruled), states can also regulate commerce within their own boundaries.

That definition of interstate commerce is very overstretched in my opinion, but okay. How about driver's licenses? Let's say Maine decided to give out driver's licenses to anyone 14+ years old. Should states have the honor these licenses, even though they have a much higher standard for theirs?

[The Duke]

That depends on what you consider "full faith and credit." That sounds to me like recognizing something as valid, as in having taken place, and been certified by the state, which is then just as if it had been certified by your state.

But each state should be able to decide how to deal with its own records, and those of other states, provided that they do not discriminate between them based on what state sanctioned this marriage / issued this license / etc.

Constitutionally (I don't know what the SCOTUS ruled), states can also regulate commerce within their own boundaries.

That definition of interstate commerce is very overstretched in my opinion, but okay. How about driver's licenses? Let's say Maine decided to give out driver's licenses to anyone 14+ years old. Should states have the honor these licenses, even though they have a much higher standard for theirs?

Of course they should honor the 14 year old drivers license.  States can regulate commerce within their boundaries, but its rare to find a case where commerce is truly confined to one state.

[J. J.]

What if a state says a girl can marry at 12 (which KS did for a long while) and PA considers it improper.  Can I meet my 12 year fiancee from PA in KS, marry her, and bring he back to PA?

[The Duke]

What if a state says a girl can marry at 12 (which KS did for a long while) and PA considers it improper.  Can I meet my 12 year fiancee from PA in KS, marry her, and bring he back to PA?

Under the Constitution, yes.  If people don't like that, the Democratic process is the proper remedy and the legislators in kansas should be removed.

There is of course, no provision of the Constitution prohibiting stupid laws from being enacted.

[Peter]

The Courts have never really made up their mind what the Full Faith and Credit clause does, and it never has really said anything about what Congress can do in regard of its "general Laws" power, mostly because DoMA is the first attempt to really proscribe a general Law on the matter.

Let me give an example:

There was a case, in the 1930s/40s I think, when an adulterous couple moved away from their respective husband and wife to Nevada from North Carolina. They filed divorce decrees under Nevada law and then married, again under Nevada law.

A few months later, they moved back to North Carolina, whereupon one of the couple was prosecuted for bigamy because North Carolina allowed Nevada's marriage statute to be effective, but not its divorce statute. The other spouse was fortunate because his/her original spouse had since died, therefore mooting whether that divorce was legal.

A federal court in this case said that NC had to recognise the divorce statute because otherwise it left a State not being able to alter the marital status of persons resident in the State. The fact that they moved to NV just to get divorced and then to return to NC was never addressed by the opinion, though one of the dissenting Justices did talk about it.

In a slightly different guise, this same case returned to the Supreme Court a few years later, the Court then overturned its previous ruling. Bagful of dissents again. This second ruling was yet again overturned in the late 1940s when faced with a custody  dispute over children and whether a divorce was even recognised.

I am of the opinion that a State must recognise the various things covered in the first sentence when instituted by another State, unless it happens to have a federal Law which says it doesn't have to.

Basically what DoMA does is say that States don't have to recognise a particular subset of marriage. This is unconstituional because it violates equal protection; Essentially a federal law is giving a greater protection to heterosexual marriage than homosexual marriage, when in a strictly legal sense there is absolutely no difference between the two.

If the Congress wants to pass a Law saying that States don't have to recognise any marriages from other States, then it would be constitutional, but you cannot cherry-pick out certain subsets from a legally identical group and then say that you don't have to recognise them.

[PADem]

No, but I doubt its passage

[they don't love you like i love you]

I disagree with it, but no.