On March 30, the House Judiciary Subcommittee on the Constitution held the first of five hearings to examine issues around same-sex marriage. This first hearing examined the constitutional basis for the Defense of Marriage Act (DOMA) of 1996 (P.L. 104-199). DOMA, for the purpose of federal law, defines marriage as “a legal union between one man and one woman as husband and wife,” and spouse as “a person of the opposite sex who is a husband or wife.” DOMA also permits states to choose whether to recognize a marriage license issued to a same-sex couple by another state.
Chair Steve Chabot (R-OH) explained that the hearing would “explore whether DOMA will remain a firewall that protects one State whose public policy supports traditional marriage from having to recognize a same-sex marriage license issued in another State.” Rep. Chabot noted, “Some argue that DOMA should survive constitutional scrutiny,” while “others argue that DOMA is unconstitutional because it singles out one group for particularly harsh treatment.”
Commending the chair for moving cautiously on the issue, Ranking Member Jerrold Nadler (D-NY) said, “Even opponents of marriage equality…are skeptical of a rush to amend the constitution.” He added, “There are many threats to marriage these days, and half of all marriages end in divorce, but heterosexuals have long succeeded in failing at marriage without any help from lesbian and gay couples.” Rep. Nadler called the hearing an “interesting scholastic debate,” saying, “Whatever arguments are made today may be informative, but they won’t answer the question. We won’t know the answer until the courts decide the question, and that won’t be for some time.”
Two legal scholars told the subcommittee that they believed DOMA was constitutional under the Full Faith and Credit Clause of the Constitution. That clause permits Congress to regulate the effect of one state’s law on another state. Vincent McCarthy of The American Center for Law and Justice called DOMA a “measured, constitutional response to the orchestrated movement to overturn State laws on marriage without benefit of the democratic process that normally determines issues of state law.” Bruce Fein of Fein & Fein said that DOMA “reinforces the right of each State to chart an independent course regarding same-sex marriage unwarped or vitiated by sister State policies,” saying that DOMA was “constitutionally irreproachable.”
Former Rep. Bob Barr (R-GA), author of the DOMA law, testified before the subcommittee in opposition to a constitutional amendment banning same-sex marriage. “We rejected such an approach then [1996], and we ought to now as well,” he said. While making it clear that he does not support same-sex marriage, Mr. Barr said that he opposed a constitutional amendment for three reasons: “First, by moving what has traditionally been a state prerogative—local marriage laws—to the federal government, it is in direct violation of the principles of federalism. Second, in treating the Constitution as an appropriate place to impose publicly contested social policies, it would cheapen the sacrosanct nature of that document…Third, it is unnecessary so long as DOMA is in force.” Wyoming State Senator John Hanes concurred with Mr. Barr. “More importantly, state courts have over 200 years of experience in deciding which out-of-state marriages they will recognize,” he said, adding, “The states are well-equipped to make these determinations themselves.”
