JUNE 1, 2012
The Defense of Marriage Act (DOMA) was in the news yesterday thanks to a decision by the 1st U.S. Circuit Court of Appeals finding DOMA unconstitutional. TNR has been speaking out against the law since its inception. Here's a look at an article by William Eskridge from a 1996 issue of the magazine that explores the historical circumstances, constitutional issues, and electoral politics surrounding DOMA, all of which will remain in focus as DOMA meets with further scrutiny in the Supreme Court:
The full faith and credit clause is about to become the Constitution's hottest provision. Found in Article IV of the original Constitution of 1789, its first sentence provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” This guarantee makes our lives in a mobile polity easier, assuring that local driver's licenses, birth certificates, marriages and divorces are recognized all around the country.
But the provision is about to be put to a historic test. It is likely that sometime in the next two years Hawaii will recognize marriage between gays or lesbians. In anticipation, nine states (and counting) have adopted legislation to block their courts from giving full faith and credit to Hawaii same-sex unions. The last time so many states declined to recognize marriages performed elsewhere was the Southern refusal to accord full faith and credit to different-race marriages. But, in 1967, the Supreme Court held that such discrimination against different-race marriages was unconstitutional. Today, at least in part out of constitutional obligation, some states recognize “incestuous” first-cousin marriages if they are legal in the state where the couple married (as is the case in eleven states and the District of Columbia).