16 QLR 221 (1996-1997)
Constitutional and Legal Defects in the Defense of Marriage Act

handle is hein.journals/qlr16 and id is 231 raw text is: CONSTITUTIONAL AND LEGAL DEFECTS IN THE
DEFENSE OF MARRIAGE ACT
By Evan Wolfson* and
Michael F. Melcher**
I. SUMMARY
This is a preliminary memorandum on the possible legal ramifica-
tions of legislation enacted allowing the federal government to bar and
subvert the recognition of selected lawful marriages, something never
done before in U.S. history.'
The Defense of Marriage Act (DOMA) has two key provisions:
(1) exempting interstate recognition of selected lawful marriages from
the constitutional command of full faith and credit, and (2) creating a
federal definition of marriage so as to distinguish among lawful mar-
riages.2 The attempt to circumvent the Constitution's provision for
interstate full faith and credit, and the unprecedented federal intrusion
into the law of marriage, get the role of the federal government wrong
in both directions. DOMA has effectively created a house divided in
which many Americans will not know from day to day, state to state,
or agency to agency, whether they are legally married or not. The Con-
stitution does not permit this violence to its federal-state balance, or the
injury this law will inflict upon real-life, lawfully married couples.
II. THE ATTEMPT TO CIRCUMVENT FULL FAITH AND
CREDIT IS UNPRECEDENTED, UNWISE, AND UNCONSTITUTIONAL
No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record or judi-
* Director of the Marriage Project, Lambda Legal Defense & Education Fund.
** Lambda Cooperating Attorney and Associate, Davis, Polk & Wardwell.
1. This memorandum should be read together with Evan Wolfson, The Law of Interstate
Marriage Recognition: a Summary of Legal Issues, (Lambda Legal Defense & Education Fund),
March 20, 1996 (available from Lambda).
2. See H.R. 3396, 104th Cong., (1996), S. 1740, 104th Cong. (1996)(enacted)(codified as
the Defense of Marriage Act 28 U.S.C.A. § 1738C (West Supp. 1996)).

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