On Friday, the United States Supreme Court announced that it will hear arguments on the constitutionality of the 1996 federal Defense of Marriage Act, and California's Proposition 8, which was a ballot measure approved by voters in 2008 that banned same-sex marriage in the state. In 2010, Prop 8 was ruled unconstitutional by a U.S. District Court judge, and this was upheld by the Ninth Circuit Court of Appeals in 2012. However, the court issued a stay on same-sex marriages pending further appeal. This will be that appeal.
In 1996, President Clinton signed into law the Defense of Marriage Act, which defined marriage as a union between one man and one woman for all federal purposes. Under the law, the federal government does not recognize same-sex marriages for any legal purpose. As such, federal employees who are in same-sex marriages are barred from enjoying those federal marital benefits afforded to employees in straight marriages.
DOMA also grants states the authority to refuse to recognize same-sex marriages, including those that have been performed in, and recognized by, other states. This means that if a gay couple marries in Massachusetts, where same-sex marriage is legal, no other state can be compelled to recognize the marriage, unless that state's laws require it. Thus, if a gay married couple from Boston moves to Arizona, that state may refuse to recognize what is in Massachusetts, a legally binding document — in this case a marriage certificate.
This provision in DOMA is perhaps the most constitutionally dubious, as it allows states to circumvent the Full Faith and Credit Clause in Article IV of the Constitution, which states,
"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."
The Full Faith and Credit Clause was written to prevent states from discriminating against the holders of legal documentation issued in the other states. The idea behind it is that a legal certificates, contracts, and other officially recognized documents are as legitimate in one state as the next. If a couple gets married in Iowa and then moves to Indiana, there is no need to get married again because Indiana must recognize the marriage certificate in accordance with Article IV.
However, DOMA gives states that do not want to recognize same-sex marriages a way out of the Full Faith and Credit Clause. Section 2 of the act reads,
"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
In other words, through this law, Congress allows states to completely ignore this fundamental constitutional provision. Granted, the clause does say that "Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof," but it says nothing about having the power to tell states that they can ignore "Acts, Records and Proceedings" — only the way they will be verified. With the same-sex marriage licenses, verification is not the issue.
It was hard to imagine the Supreme Court passing up the opportunity to consider DOMA (and Prop 8) given the far-reaching implications they have for gay rights and the country as a whole. Given the current 5-4 conservative advantage on the court, this may not be a welcome development for LGBT advocates.