1/26/2005

DOMA Survives Court Challenge

Back in November, I wrote that I did not expect the Defense of Marriage Act to survive judicial review. Much to my surprise, a Federal District Court in Florida has proven me wrong (PDF link). In its decision, the court directly addressed the question of whether or not DOMA is contrary to the "Full Faith and Credit Clause" of the constitution.

CongressÂ’ action in adopting DOMA are exactly what the Framers envisioned when they created the Full Faith and Credit Clause. DOMA is an example of Congress exercising its powers under the Full Faith and Credit Clause to . . . regulate conflicts between the laws of two different States, in this case, conflicts over the validity of same-sex marriages.

Adopting PlaintiffsÂ’ rigid and literal interpretation of the Full Faith and Credit Clause would create a license for a single State to create national policy.
I was surprised when I read this decision, but quickly learned that my surprise was based on some ignorance on my part. Much of the talk about DOMA has been how it's so obviously a violation of the "Full Faith and Credit" clause. In most of these conversations, that clause is quoted like so:
Full Faith and Credit shall be given in each State to the Public Acts, Records and Judicial Proceedings of every other State;
That seems fairly straightforward. However, I made the mistake of assuming that the people quoting FFAC were quoting the whole thing. Alas, they were not. It is said that "the devil is in the details," but in this case, the devil is after the semicolon. The complete text of FFAC reads as follows:
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 Judicial Proceedings shall be proved, and the effect thereof. (emphasis mine)
This complete reading of the clause puts the court's decision in a clearer light. Yes, FFAC says that legal proceedings in one state are binding in another. It goes on to say that when those proceedings are in conflict, Congress is empowered to pass law to settle the dispute.

To my eye, this would tend to give DOMA a much better chance of surviving review by the Supreme Court, although it may be a while before a DOMA case makes it that far. The plaintiffs in this case have decided not to appeal the court's decision.
"With the present Supreme Court not willing even to hear the Florida adoption case, and the possibility of newly appointed Supreme Court judges by the Bush administration being even more conservative, it would not be prudent at this time to continue this effort," said Ellis Rubin.
I can understand that the couples in question are weary of their struggle and that they face an uphill battle, but I think they are making a mistake by not pushing the case. An uncontested legal decision tends to become precedent more quickly than a contested one, because judges are more comfortable using a case as a basis for their own decisions if that case has no pending appeal. Allowing this case to stand uncontested for a period of time will increase the likelihood of similar decisions from other courts, thus creating a wider precedent - a precedent that the Supreme Court may one day decide is too firmly entrenched to reverse.

Hat-tip to RightPundit.