DOMA Repeal and the Truth About Full Faith & Credit

From The Huffington Post:

By Chief advisor on LGBT issues for 2008 Obama campaign
Posted: 7/21/11

(This post is an updated version of an essay that first appeared on the eQualityGiving website, which can be found at here.)

With the introduction of the Respect for Marriage Act and President Obama’s strong endorsement of the legislation, we are closer than ever before to achieving the repeal of the so-called “Defense of Marriage” Act, the discriminatory 1996 statute that denies equal treatment across the board to committed same-sex couples. Predictably, opponents of equal treatment are making the same alarmist claims that succeeded for them so well when they got DOMA enacted fifteen years ago: that the Full Faith and Credit clause of the U.S. Constitution will require that a marriage performed in one state between a same-sex couple automatically be recognized everywhere in the country. According to this claim, states that deny the freedom to marry to same-sex couples will suddenly have their policies overridden by the decisions of Iowa, New York or Massachusetts.

These claims are false. They always have been. In fact, it has been well established for more than a century that Full Faith and Credit does not require mandatory recognition of marriages around the country in the same way that it requires mandatory recognition of judgments by courts (which is its core function). Insofar as DOMA was enacted to address a supposed full faith and credit problem, it was enacted on a falsehood. Now that repeal is on the horizon, it is time to put that falsehood to bed.

The key points that it is important to understand are the following:

• First, this is not the first time that states have had different policies on contentious questions about civil marriage and who can get married under state law. Far from it. States have figured out sensible ways to handle these policy differences in the past, and they can do so again.

• Second, while repealing the “full faith and credit” portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of “imposing” same-sex marriage upon other states, as many on both sides of the debate often assume.

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