Why the Defense of Marriage Act is Constitutional

by Robert J. Romano

March 8th, 2004

Article IV, Section 1 of the federal Constitution clearly states that: "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." Under the "effect" clause, the Defense of Marriage Act of 1996 is constitutional because of the power Congress retains under this section, to prescribe "what 'effect' one State's acts, records, and judicial proceedings shall have in another State." (Quoted from Summary and Analysis: Defense of Marriage Act at http://www.lectlaw.com/files/leg23.htm ...) Using this power was necessary to prevent one State from defining marriage for the several States, however it does not prevent one State from defining marriage in the way it sees fit for its own sovereign borders. This section in the Constitution itself gives Congress the ability to work out potential disputes between each of the States, as with the Defense of Marriage Act, and does not give one State the power to define marriage law for all fifty States, anymore than it gives one State the power to define how elections are to be carried out in the several States. What it does give is to Congress, which is the power to prescribe the manner in which one State's legal acts, records, and judicial proceedings are to be recognized in the several States. What the Defense of Marriage Act does is protect State's rights, pure and simple.

        In anticipation of the eventuality of the Defense of Marriage Act being challenged in the federal courts, it will be interesting to see how Article IV, Section 1 of the federal Constitution is indeed interpreted.  An interpretation favoring Congress' constitutional authority to define the effect that one State's acts, records, and judicial proceedings has on another State should be the proper interpretation.  This was the intent of the law, and the law itself is consistent with said authority granted by the Constitution to Congress to do so.  It should be noted that said law could be always changed legislatively.  Congress still retains the power to change that law if it proves to be unpopular, and it is not up to the courts to usurp that power from Congress, nor to deny its clear intent as expressed in the Constitution.  Congress clearly has the power to pass general laws which prescribe the effect that one State's acts, recordings, and judicial proceedings will have on another State.  If Congress chooses, it may change that law.

        Of course, it is not up to the courts to prescribe the manner in which one State's public acts, records, and judicial proceedings shall have effect in the several States.  What potentially makes a federal marriage amendment to the Constitution necessary is not only the anticipation of the Defense of Marriage Act being challenged in the federal courts, but also the anticipation of the courts failing to recognize what is clearly stated in the Constitution, and therefore the perceived decision that the courts would make.  Considering that the manner in which additional rights are to be prescribed is not stipulated in the Constitution, the courts have over the years took it upon themselves to enumerate rights that are not expressly stated in the Constitution but are nonetheless protected.  Though the Constitution does not stipulate this power, the judicial branch has in effect, through judicial precedence, used this power to enumerate the right to privacy, for instance, which is similarly not stated in the Constitution.  What is to prevent the courts from determining that there's an additional right to same-sex marriage, under these pretenses?

        This is what advocates of judicial restraint mean by "legislating from the bench." The courts should understand Article IV, Section 1, and the power retained by Congress to prescribe the manner in which one State's acts, records, and judicial proceedings shall take effect in the several States.  It is not the proper, and certainly not the peculiar province of the courts to change the meaning of the Constitution.  Interpreting the law does not mean ignoring the law, and for the sake of both the legitimacy of the courts, and of our very Constitution, the power expressly stated in Article IV, Section 1 ought to be recognized if or when the Defense of Marriage Act is challenged at the federal level.

        The "equal protection" clause of the federal Constitution did not amend Article IV, Section 1.  However, the Massachusetts Supreme Judicial Court recently found that "lesbian and gay couples, like heterosexual couples, have the right to marry.  Denying their right to marry discriminates against them and violates the right of all citizens to equal protection under the law." (Quoted from: http://www.civicmind.com/ccmarry.htm ...) The Massachusetts Constitution does state in Article CVI that "[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin." (Quoted from: Constitution of the Commonwealth of Massachusetts) While this clause does not mention sexual orientation, in the Masschusetts Supreme Judicial Court's majority opinion, "Barred access to the protections, benefits and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions." (Quoted from the New York Times) Arbitrarily? The American Heritage Dictionary, New College Edition, published in 1976, on page 67, defines arbitrary as "adj. 1. Determined by whim or caprice.  2. Based on or subject to individual judgment or discretion.  3. Established by a court or judge rather than by a specific law or statute..." Far be it from a legislative branch to act "arbitrarily" in passing a law which defines marriage! The legislative cannot act arbitrarily in this regard anymore than a piece of paper can! Judges, however, under this definition, most precisely can act arbitrarily at times through decree.  It should be noted that the Supreme Court recognizes the power of judicial review, though I believe that the power of the court to enumerate new rights may be limited by an act of Congress.

        However, it is still up to each State, like Massachusetts, to define marriage law in the way it sees fit, which is the beauty of the Defense of Marriage Act of 1996.  Under present federal law, one State cannot define marriage for the several States, and under the federal Constitution, the Congress has the power to "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." This power is not amended by the 14th Amendment, which clearly applies to the States.  Same-sex marriage is not a constitutionally guaranteed right.  Courts would indeed be acting arbitrarily to enumerate such a right as protected under the "equal protection" clause of the 14th Amendment.  It is in anticipation of such a challenge that this piece is being written, though it is this author's fear that the courts will not interpret the laws prescribed by Congress, rather they will produce their personal opinions on the matter.

        This should demonstrate the need for an act of Congress, or even a constitutional amendment which makes the courts accountable to Congress, such as has been proposed in the Enumerated Powers Amendment, which would amend Article V of the federal Constitution.

Quoted from: http://patriotpetitions.us/intro.asp?id=10 

        If you believe that the powers of the court have been misinterpreted, or simply are not clearly explicated, you ought to sign the petition to get this amendment to be considered by Congress and the several States.  The powers of the judiciary to act arbitrarily are, in my opinion, unconstitutional, but there must be a constitutional mechanism to hold the judicial officers accountable for implying or inferring rights not expressly stated in the Constitution.  Should it be left up to the courts to determine if the courts are acting unconstitutionally?