Full faith and credit

I wrote yesterday about the Respect for Marriage Act (repealing DOMA) and said the repeal includes the provision that says states will have to honor gay marriages performed in other states. Tobias Barrington Wolff, formerly the Chair of LGBT Policy for Obama's 2008 campaign and with an article in Pam's House Blend, offers correction and clarification.

That clause in DOMA that says states don't have to honor gay marriages from other states is based on a false premise and wasn't necessary. In the past states have disagreed on marriage issues (such as interracial marriage) and the courts have worked out how to handle the differences. They will do so again. There will be differences in gay marriage law for quite some time (barring a really favorable ruling by the Supremes in the Calif. gay marriage case).

The Full Faith and Credit phrase of the Constitution is cited as the need for the part of DOMA mentioned above. However, that phrase applies to court proceedings, such as custody or wrongful death. Someone is not able to subvert a court judgment simply by moving to a more favorable state. So if a recognition of a marriage is required to complete a court judgment a second state must honor that marriage, if only to carry out the judgment.

However, if courts are not involved the situation is different. A gay couple going to New York to marry for the purpose of demanding Alabama (or a health insurance company there) recognize their marriage probably won't succeed. State courts don't have to violate strong public policies.

Repeal of the Full Faith and Credit part of DOMA is still important, for three reasons.

* The Constitution says (as discussed above) one state must honor the court judgments of another state. DOMA says this does not have to be followed for gay people.

* States legislatures or courts are able to work out sensible policy about the circumstances an out of state marriage might be recognized. But with DOMA that discussion is avoided and states are encouraged to treat gay couples with legal hostility.

* This part of DOMA was the first time the federal gov't singled out a group of people and declared their relationships could be treated with hostility in interstate situations. It is a bad precedent.