An excerpt from the article I co-authored with my wife titled Same-Sex Marriage, Post-Windsor in the Daily Report. Here is the scenario we dreamt up for how Georgia (our very peachy home state which, in 2004, passed a state constitutional amendment prohibiting same-sex marriage) could spark the next constitutional challenge to the Defense of Marriage Act (DOMA):
Imagine this scenario: Two newly married, and even newer residents to Georgia, show up at a Department of Driver Services customer service center to apply for driver’s licenses, using their new married names. The first, a young lady named Alice, presents a marriage license from Vermont announcing her matrimony to someone, first name Gunter (or Wolf or Spartacus). The second person, Robert, presents a marriage license from Vermont announcing his nuptials to someone named Gunter (or Wolf or Spartacus). Besides names, nothing indicates gender on either marriage certificate.
If the DDS employee handling the paperwork flags the possibly same sex license—but not the other—for scrutiny, accepting one, denying the other, might Georgia be the site of the next challenge to the same sex marriage prohibitions prevalent in many states? Unless every such marriage certificate presented is scrutinized with the same care, how does Georgia’s ‘Recognition of Marriage’ Amendment remain immune from an Equal Protection challenge?
We go on to explore, among other things, estate planning issues for gay and lesbian couples in states, like Georgia, that don’t recognize any form of same-sex union. The following passage, close to the end, focuses on why the U.S. Constitution’s ‘full faith and credit’ clause need not force one state to recognize a marriage recognized as lawful in another state:
Just nine years ago Georgia voters overwhelmingly passed the Recognition of Marriage Amendment. Is there any reason to suspect the Amendment could fall to a constitutional challenge? Article IV, Section 1 of the U.S. Constitution, reads, “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.” Section 2 of DOMA, still the law of the land, reads, “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 under the laws of such other State . . . or a right or claim arising from such relationship.” By tracking the second sentence of the ‘full faith and credit’ clause in DOMA, Congress believes it has the power, and did in fact effectively use it, to relieve the states of any requirement to recognize one another’s marriages.
Long before Windsor, the Supreme Court recognized “the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U. S. 562, 575 (1906). Of course, the states’ free reign to do as they will with respect to marriage is not sacrosanct. For instance, in Loving v. Virginia, a ban on interracial marriage was overturned. Nevertheless, high regard for the power of the states to regulate the institution is professed. Indeed, in Windsor, Justice Kennedy critiqued DOMA’s “depart[ure] from [the] history and tradition of reliance on state law to define marriage.” To that, Chief Justice Roberts, in his dissent, reminded the majority to remember their concerns for state power, diversity and sovereignty as regards marriage when the inevitable challenge to DOMA’s Section 2 reaches them.
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