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DOMA, Part II
Clyde Wadsworth says the part of DOMA the Supreme Court did not strike down still denies some same sex marriages equal rights.
By Clyde Wadsworth
It's time for DOMA's other Manolo Blahnik to drop.
In June, the Supreme Court struck down half of the federal Defense of Marriage Act -- the stiletto that allowed the federal government to discriminate against same-sex couples legally married in states like California and New York. But for the time being, the Court let DOMA's matching heel stand. That half allows state governments like Arizona and Alabama to discriminate against same-sex couples legally married in other states. So if Bert and Ernie marry in San Francisco and move to Phoenix, their shoes shrink, their skin cracks and their marriage evaporates. Say goodbye to hubby's health insurance, hospital visitation rights and Social Security survivor benefits.
You may think the Constitution's Full Faith and Credit Clause -- under which states are supposed to give "full faith and credit" to the laws and court rulings of other states -- will save Bert and Ernie's marriage. But that clause has not proved to be a comfortable fit in marriage cases. For more than a century, the courts have said Full Faith and Credit doesn't require a state to recognize another state's marriages in the same way it has to respect another state's court judgments -- a state is free to ignore a marriage that violates its own public policy.
Of course, that exception runs counter to the principles of full faith and credit, so it may be time for the courts to take a second look at a more sensible pump. At the very least, if a marriage is valid in the place where it was celebrated, another state should not be able to ignore it based on discriminatory motives or moral disapproval that the Supreme Court has found unconstitutional. Regardless of whether Arizona can deny Bert and Ernie a wedding in the desert, it may still have to recognize their marriage certificate from a neighboring oasis.
Once DOMA's other shoe hits the floor, we'll be ready for the next big leap in marriage equality.
With a perspective, I'm Clyde Wadsworth.
Clyde Wadsworth is an attorney specializing in business and civil rights law.