July 15, 2004

Kerry, DOMA and the Constitution

by PG

Senator John Kerry, the Democratic presidential nominee, may be coming in for a drubbing from Eugene Volokh.

To deserve condemnation, they need to have argued that DOMA is unconstitutional and have also argued that the FMA is unnecessary because of DOMA.
Kerry changed his views on the Defense of Marriage Act between his vote against it in 1996 and the February Democratic debates.
Kerry also asserted that DOMA was unconstitutional and that the U.S. Constitutionís full faith and credit clause requires states to recognize the marriage licenses of another state -- a position Kerry has since reversed.

"The authors of the bill mistakenly claim that Congress has the authority to allow one state to ignore a legally recognized marriage in another," he wrote in 1996. "But the U.S. Constitution is unequivocal on this point: 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.'

"Imagine the confusion if we didnít have such a clause: A child-custody decision in California could be ignored by Illinois; a divorce concluded in Nevada could be rejected in New York. DOMA does violence to the spirit and letter of the Constitution by allowing the states to divide."

In a February Democratic presidential debate, Kerry distanced himself from his 1996 position on the Defense of Marriage Act.

"I think, under the full faith and credit [clause], that I was incorrect in that statement," he said at the debate, which was held in California. "I think, in fact, that no state has to recognize something that is against their public policy."

From the Boston Globe:
Bush's main Democratic rivals, Senators John Edwards of North Carolina and John F. Kerry of Massachusetts, both blasted Bush's call for a constitutional amendment as divisive and unnecessary, especially given that a federal law passed in 1996 already defines marriage as a union between a man and a woman. [...]

Kerry said: "While I believe marriage is between a man and a woman, for 200 years this has been a state issue. I oppose this election-year effort to amend the Constitution in an area that each state can adequately address, and I will vote against such an amendment if it comes to the Senate floor."

In fairness to Kerry, he says that he was mistaken before about the constitutionality of DOMA, and therefore is not simultaneously claiming DOMA to be unconstitutional while opposing the Federal Marriage Amendment as unnecessary.

July 15, 2004 06:26 PM | TrackBack

I've wondered why Democrats don't take this tack..

There were really two parts to DOMA: (1) States don't have to recognize each others' gay marriages. (2) For federal purposes, gay marriages don't count.

The first is the one that Kerry's talking about. Maybe it's constitutional, maybe not, but it's hard to simultaneously argue that whom to marry is a matter of a state's authority to define a marriage *and* that a state has no right to question another state's definition of a marriage. It seems to me that no matter which side a candidate takes in this, everyone will get mad.

The second is certainly consistutional -- in the granting of federal benefits, the feds can define who is eligible. However, it seems how politically palatable to argue that the federal government should stay neutral and agnostic about what a marriage is. Whatever a state says is a marriage is good enough of federal purposes, could go the argument. If Massachusetts says that two people are married, then these two Massachuttans may file a 1040 jointly, even though a similar couple in Virginia may not.

In short, attack part of DOMA by taking "states' rights" to a logical conclusion by abandoning the argument that #1 is unconstitutional, and instead argue that the federal government should accept marriages based on whatever the states say they are, even for federal purposes.

Posted by: David Weigel at July 18, 2004 12:22 AM
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