Proposition 8, the 2008 ballot initiative that overturned a California Supreme Court decision legalizing gay marriage, reflected popular opposition to what was perceived as arrogant meddling by unelected judges. Although the federal Defense of Marriage Act (DOMA) was driven by a similar populist impulse, in practice it frustrates the will of the people in states where voters or their elected representatives decide to treat gay and straight couples equally.
Whether you think this issue should be decided by popular vote will depend on whether you think legal recognition of gay marriage is required by the constitutional principle of equal protection, a claim raised in both cases the Supreme Court heard last week. But either way, DOMA cannot stand. As the law's author noted when he repudiated it in 2009, DOMA "has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions."
When Congress passed DOMA in 1996, Paul Clement told the Supreme Court last week, it was "trying to promote democratic self-governance." Clement, a former U.S. solicitor general representing DOMA's supporters in the House of Representatives, said Congress worried that a Hawaiian Supreme Court decision requiring the state to recognize same-sex unions (a ruling that was later overturned by a constitutional amendment) could ultimately "change the definition of marriage" throughout the country.
How so? Gay couples might flock to Hawaii, get married there, and then insist that their home states recognize those marriages, citing Article IV, Section 1 of the U.S. Constitution, which says "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."
States already could resist such demands based on the "public policy exception" to this clause, which says a state is not obligated to respect laws that contradict its own. Adding suspenders to this belt, Section 2 of DOMA decreed that no state "shall be required to give effect to any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same sex that is treated as a marriage."
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