DOMA and the Two Faces of Federalism
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Authors
Strasser, Mark
Issue Date
1999
Volume
32
Issue
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
INTRODUCTION|In 1996, Congress passed the Defense of Marriage Act ("DOMA") which purportedly gave states the right not to recognize their domiciliaries' same-sex marriages even if validly celebrated in another state. Yet, domiciles already had that right, so it is not clear whether Congress was merely trying to forestall the courts from changing current law or, instead, was trying to do something else. The very brevity of the Act makes it difficult to interpret. For example, the Act does not even mention choice of law or divorce, although it could be interpreted to have significant implications for both. According to one interpretation of the Act, Congress has now changed the rules under which divorces must be recognized in sister states, although it is not clear that the Congress has the power to make such a change. If indeed Congress has such a power, it would not be surprising for Congress to be pressured to make further exceptions to current full faith and credit requirements. Such exceptions undermine the unity which the Full Faith and Credit Clause was designed to secure, thereby destabilizing family relations and disappointing the justified expectations of countless innocent individuals. In its haste to pass DOMA and to put the President in a politically unpalatable position, Congress did not adequately take into account the potential constitutional ramifications of DOMA and its threat to our federalist system...
Description
Citation
32 Creighton L. Rev. 457 (1998-1999)
Publisher
Creighton University School of Law