What About Section 2?

I saw quite a few headlines, tweets, et cetera yesterday stating that the U.S. Supreme Court's Windsor v.Estate of Spyer decision had "struck down DOMA [the Defense of Marriage Act]." In fact, only Section 3 of DOMA -- the section defining marriage for the purposes of a host of federal statutes -- was at issue in the case. The Court explicitly noted that the case had nothing to do with section 2.

So what's Section 2?

Section 2 allows states to refuse to recognize lawful same-sex marriages in other states. If Congress bothered to indicate the constitutional basis for Section 2, it would have been Article IV, Section 1 of the U.S. Constitution:

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."

(Emphasis added.) This provision generally requires states to acknowledge judgments issued in other states -- although I know of situations where courts have refused to do so, because the judgments were supposedly issued in one state without constitutional safeguards required by the case law of the other state. This language may also be the basis for the general rule that a couple married in one state is deemed married in all states. (A 2004 New York Times article, quoting author and law professor Andrew Koppelman, states that during the era when many states forbade interracial marriage, no state was ever forced through judicial proceedings to recognize such a marriage solemnized in another state. Mr. Koppelman was presumably referring to the period before 1967's U.S. Supreme Court decision in Loving v. Virginia, which not only held Virginia's ban on interracial marriage unconstitutional, but involved Virginia residents married in the District of Columbia.)

Section 2 of DOMA assumes that "prescribing the manner" in which the states shall give "full faith and credit" to marriages in other states, and/or "prescribing" what "effect" such "full faith and credit" must have, may include providing an exception based on the parties to the marriage. Does Windsor shed any light on whether such an exception is valid? The two primary principles at work in Windsor point different directions.

Windsor relies in part on the principle of federalism: that in our federal system, there are many areas in which the states exercise primary or exclusive authority. In general, family law is a state concern, not a federal one, although there are exceptions (some of which Windsor lists). The definition of marriage, like other family law matters, has been a state province. Windsor holds that "[Section 3 of] DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage."

By contrast, Section 2 could reasonably be said to honor and protect the state's authority to define marriage, by spelling out that each state may apply its own definition, regardless of how far some other state decides to stretch its own. The Full Faith and Credit doctrine may be viewed as a restriction on state autonomy -- and any restriction on that doctrine, as showing respect for state autonomy.

There is, however, another thread running through Windsor. The majority opinion uses the word "dignity" (or, in one case, "indignity") ten times. It refers to the "status and dignity" accorded a married couple by state law; it states that New York's "decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import." (Some might quibble with the idea that New York "gave," rather than acknowledged or ceased to deny, this right.) The majority also makes numerous references to "equality," "inequality," and "justice." It notes that New York, eleven other states, and D.C. "decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons." It describes DOMA as "writ[ing] inequality into the entire United States Code," and states that DOMA's "principal purpose is to impose inequality." Ultimately, the majority holds that given the context of our federal system, the provision in question violates the Fifth Amendment's guarantees of due process and equal protection. Perhaps there is a message in the fact that the holding is phrased in terms of "DOMA," not "Section 3," although the opinion's reach is technically limited to the latter.

Windsor deplores inequality between different types of committed couples living within a single state. Section 2 involves similar inequality, although the source of the inequality is primarily the state where these couples live, rather than simply the federal statute.

 The Windsor majority was comprised of Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Most analysts believe that the four more liberal Justices accepted the federalism argument in order to reel Kennedy in. Without that element, could they find a Justice willing to join them against Section 2? The answer may depend on whatever historical information may exist as to the original meaning of the Full Faith and Credit Clause. Several Justices at least purport to rely on the original meaning of constitutional provisions. As originally understood, did  Congress' power to "prescribe" the "manner" of "proving" another state's "public acts," and the "effect" of such proof, reach so far as to let the state decline on the basis of substantive content or of parties affected? The Constitution was a grand and contentious compromise between state autonomy and national unity, a corrective for the rivalry and chaos of American life under the Articles of Confederation. If one state may disdain a marriage accepted by another state, is this too reminiscent of pre-Constitutional state conflicts? Somewhere, no doubt, lawyers and law clerks are busily preparing arguments to that effect.