Talk:Defense of Marriage Act

I daresay some Wikipedians would like to balance this article by adding opposing views from Lambda, et al. -Ed Poor

I just nuked a very poorly formatted info-dump copied directly from Same-sex marriage in the United States. It discussed the issue in general, but had little to do with the Act itself. Now then, I don't suppose there's any chance of adding how marriage is supposed to be threatened? --Kizor 14:06, 14 May 2005 (UTC)

Public Policy Exception

Article fails to mention "public policy exception" to the Full Faith and Credit Clause. B 18:01, Feb 20, 2004 (UTC)

There is no public policy exception to the Full Faith & Credit Clause. See Baker v. General Motors Corp., 522 U.S. 222 (1998). This article states the contrary -- "The Supreme Court has long recognized a "public policy exception" to the Full Faith and Credit clause" -- and should be edited to reflect the current law. However, because the Full Faith & Credit Clause generally only applies to state judgments, and a marriage liscence is not a judgment, Full Faith and Credit has not traditionally been given to marriage licenses. Gregoryc July 22, 2004

True, the majority opinion of the court states, "this Court's decisions support no roving "public policy exception" to the full faith and credit due judgments" (emphasis added), BUT there is a public policy exception nonetheless. Merely citing Baker vs GM in which the justices unanimously agreed as to the ultimate decision but in which only 5 (a bare majority) of the justices concurred in it's rationale is problematic; it ignores that jurists and scholars have referred to a "public policy exception" in their analyses of the Supreme Court's inconsistency on this point including the inconsistency in the majority court's opinon in Baker. (Unfortunately "law" is not always consistent, unambiguous or clear, if it ever has even any of these qualities.) To build upon your last comment, Gregoryc, and for clarification to others: the phrase "public Acts, Records, and judicial Proceedings" of the FF&C clause is commonly interpreted to mean judgments (as opposed to laws)--application of FF&C generally distinguishes between FF&C in regard to state laws and FF&C given to state judgments. It is held by legal experts that:

• (1) in regard to state laws, the FF&C clause does not apply, is not controlling or in other words state laws do not fall within the scope or purview of the FF&C clause--FF&C does not need to be given by one state to a separate state's laws; and
• (2) in regard to enforcing judgments of one state in a separate state, the FF&C clause governs and FF&C generally must be given by one state to the judgments of another state.

The problem with this judgment/law distinction is how is it possible to give FF&C to the judgments of one state in a separate state without also giving FF&C to its laws. When the FF&C clause is inapplicable, jurists and scholars have referred to this as a "public policy exception" although this could be considered a misnomer since how could there be an exception if it doesn't even apply. On the other hand, given the court's (inconsistent) rationale, it could make sense to explain that what is really going on is that the court is applying a "public policy exception" by deed if not in word (rationale). Read Baker and the other cases on this point and judge for yourself. The article should reflect Gregoryc's comments and mine more explicitly...you non-lawyers, don't be to shy to work our comments into the article. —B|Talk 16:25, 24 Jul 2004 (UTC)

As a side note, as the same-sex marriage cases ripen for judicial review, the Supreme Court will address the same-sex marriage issues relating to the Equal Protection and Due Process clauses before addressing the FF&C issue if it even addresses the FF&C issue at all. If the Supreme Court recognizes no right to same sex marriage under the EP and DP clauses, only then will it address FF&C issues. Presuming no pre-emptive federal amendment, if the Supreme Court does not recognize a right to same sex marriage under either the EP or DP clauses, it is also not likely that the court will mandate that such marriages be recognized under the FF&C clause in states which prohibit them. —B|Talk 16:46, 24 Jul 2004 (UTC)

I have added some general information regarding the 14th amendment applications on DOMA. I am not sure what the public policy exception is referring to in the full faith and credit however there is the clause that allows Congress to prescribe the manner in which such laws under the FF&C are proved, which I will be adding 71.107.82.58 03:55, 12 September 2006 (UTC)ratherhaveaheart

Marriage Protection Act

This article perhaps should cover this legislation that was just passed by the House. No matter what anyone thinks of "same-sex marriage", this legislation seeks to bar access to federal courts by a segment of the American people. Clearly unconstitutional, and merely a ploy to delay a plausibly inevitable reversal of the Defense of Marriage Act by the Supreme Court. -- Stevietheman 19:08, 24 Jul 2004 (UTC)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Not following the Constitution? How difficult it is for error to escape its own condemnation! -- 69.19.2.225 13:19, 27 Mar 2005 (UTC)

Art.III §2 Clause 2 (as refered above) refers to the jurisdiction of the supreme court, not the entire Federal Judiciary. And then only as to what manner of jurisdiction, appellate or original, the court has. The Congress cannot simply declare certain controversies outside the purview of the court. --Charonn0 05/18/05 18:44 PDT

Constitutionality and "some...others"

The section Constitutionality has become pretty bad with the "some say...others argue" sort of debate. This generally looks pretty messy, and doesn't help with the article's credibility, which is basically my way of asking if maybe the editors representing these points of view in the article would be kind enough to say exactly who says and exactly who argues, or to give examples of specific groups who make these statements. -Seth Mahoney 02:29, Sep 18, 2004 (UTC)

Some additional things to consider: The impact of Romer v Evans and the varying tests the amendment could face (notably O'Connor's occurence as a substantiation of the right to protect, but not as a factor limiting). The recognition of the current Human Rights treaties which are intended to allow even polygamy. --Ynsaen 00:37, 17 January 2007 (UTC)

Euphemistic Language

The most recent edit changed

"fear among anti-gay activists..."

to

"...concern among advocates of traditional marriage..."

shouldn't we keep things more concise and direct?

--Charonn0 6-30-05 12:46 PDT

I made the original paragraph on Baehr v. Lewin. I changed it to a somewhat more neutral "concern among opponents of gay marriage".

That is much better.

--Charonn07-28-05 12:49 PDT

DOMA first federal definition of marriage?

A question that intrigues me, and that will be good for shedding light on the federalism/state rights angle of this debate: did DOMA constitute the first time that the US federal government came up with a legislated definition of marriage for the purposes of the federal government? In other words, before DOMA, was any marraige recognized by a US state a legal marriage for federal purposes? Are the same-sex marriages currently being recognized in Mass. the first marriages in the US recognized by a state but not the federal government? --Jfruh 15:49, 17 August 2005 (UTC)

As far as statutes are concerned I think this is the first marriage def. There US Supreme Cases that define marriage including Loving v Virginia, which may be referenced. There is definately some fed influence on the def of marriage especially concerning the statehood of Utah. 71.107.82.58 03:58, 12 September 2006 (UTC)ratherhaveaheart

Article Structure

I have done some significant reorganization on this article to put similar arguments together. I think that the Legal History should immediately follow the text and either the Constitutionality arguments should be within the legal history or all of the arguments should follow. I also question whether the information regarding the San Francisco events are even relevent to this article or if they should be deleted, but I will wait for input before I delete that subsection. I think that this somewhat chronological structure is easiest way for someone to learn about a statute. Ratherhaveaheart 16:30, 12 September 2006 (UTC)ratherhaveaheart

For what it's worth, I don't think the SF marriages are particularly relevant here. DOMA is about the federal government's definition of marriage, and states' rights to refuse to recognize same-sex marriages conducted in other jurisdictions, neither of which has anything directly to do with California's decision to recognize same-sex marriage (or not). --Jfruh (talk) 05:47, 28 September 2006 (UTC)

Well then away it goes, I think it may confuse people if it is left. Ratherhaveaheart 17:52, 28 September 2006 (UTC)

Gerry Studs Application

I'm not quite sure how valuable the statement is to the article as a whole. Rather than a somewhat random example of how DOMA affects people maybe a more generalized listing would be more appropriate. For instance:

Under DOMA same sex couples do not receive (insert a number of federal benefits).

Ratherhaveaheart 04:06, 19 October 2006 (UTC)

I have removed the section (and copied it below for comment) on the grounds that it is essentially trivia, and is insufficiently specific to source. What specific benefits were claimed and which were denied? Were there any other grounds for the denial? Properly-sourced information on how many people are denied benefits, which benefits they are denied and how much money is involved would be far more informative. Robert A.West (Talk) 03:11, 21 October 2006 (UTC)

Application

The Defense of Marriage act enabled the federal government to deny benefits to the surviving same-sex spouse of former U.S. Representative Gerry Studds.

Studs NOT the first

I just deleted an anonymous addition that said that the denial of Congressional pension benefits to Studds' husband was the "first" use of this law. Clearly this is not the case. Gay couples married in MA have been treated by the Federal government as not married in regards to such federal matters as federal income tax, immigration, and so on for the last two years, all due to DOMA. While this is perhaps a particularly high-profile example, it's not the first one. --Jfruh (talk) 20:44, 25 October 2006 (UTC)

DOMA proponents counter...

Opponents claim the Equal Protection clause of the Fourteenth Amendment introduces an issue of discrimination against the same sex couples. However, DOMA proponents counter gays have the same right to marry a person of the opposite sex that heterosexuals have.

I added in this:

A problem with this is that the same argument can apply to mixed-race marriage, which have been made legal.

It is a valid objection, however, I'm not sure if it is appropriate to add it due to the NPoV rules of Wikipedia. So I added this Talk section.

The reasoning behidn the problem I proposed is that the same argument can be used against interracial marriage-- after all, black people would have tghe same rights to marry as white people, just as gays, under this argument, have the same rights to marry the opposite sex as straight people. --Melissia 19:20, 18 December 2006 (UTC)

I'm removing that statement as WP:OR; if you'd like to re-ad it, please find someone you can source someone who makes that point. I think that adding inline citations to the 'Constitutionality' section would go a long way towards reducing the "this side says this"/"that side says that" nature of the article, incidentally. GertrudeTheTramp 05:29, 11 January 2007 (UTC)

In that case, I will remove the whole thing, rather than just one part of it. After all under taht reasoning... since none of the arguments are sited, all of them are origonal research-- and it's very misleading to state taht "everyone has the same right to marry those of the opposite sex" when that argument was once used to prevent interracial marriage, and was defeated on the basis of equal rights. --Melissia 20:22, 13 January 2007 (UTC)

The claim that DOMA enshrines discrimination into law is well attested. See, for example, Dahlia Lithwick's article in Slate (citation in section below). I've heard the response indicated (can marry someone of the opposite sex) on Trinity Broadcasting, so its probably sourcable, although not from any of the current references SFAIK. Whether the point/counter is important enough to mention is another matter. Robert A.West (Talk) 21:06, 13 January 2007 (UTC)

The claim itself might be (is) well attested, but Melissia made it clear that her placement of it there was OR-- it is the "problem she proposed." That said, I guess the bigger issue that I missed by being a bit too citation obsessed was that it's pretty clearly POV in a way that the first part of the paragraph (which she then removed) wasn't; there are plenty of people who would argue that her comparison isn't a 'problem' as it is invalid. (The issues go hand in hand, however, if it wasn't OR, it would be sourced in some way in the sentence, resolving those pesky POV problems.) Depending on your way of looking at things. But since it's all gone now, creating IMO a better introduction (let's leave the point-counterpoint in the article, not the intro!), it's all moot, eh? GertrudeTheTramp 09:00, 17 January 2007 (UTC)

Sorry, I'm confused. Ignore me. Or ignore what I say that doesn't make sense. Or rather, ignore what I say that doesn't make sense, the good points I want credit for! :-) I'll go away now. GertrudeTheTramp 09:02, 17 January 2007 (UTC)

As it was, it wasn't sourced at all, and it wasn't really neutral (to me), either. Mine was origonal research, but I was more trying to solve the NPoV problems that I believe existed at the time. And since none of it was sourced in the first place... I solved both problems by removing the statements entirelly. If someone wants to find sources fro the statements, I'll find a link of people arguing the counter. And in the end, it may just be better to not clutter up the page and instead put links to two well-constructed argument pages, one for and one against, in the links section at the bottom.

A further citation may indeed lie in the body of the law as intent was described by its creators.— Preceding unsigned comment added by Ynsaen (talk • contribs)

That's likely to constitute original research. For one thing, a bill may be discriminatory in effect if not in intent. Further, the creators of a discriminatory law are unlikely to put down "discrimination against group X" in the legislative history of the bill, so we need other commentators to tell us whether or not it is discriminatory. Robert A.West (Talk) 00:36, 17 January 2007 (UTC)

Citation

I'd like to know the source of the paragraph begining "DOMA may be largely unnecessary, regardless of whether it is constitutional." I see taht the public policy exception is found in Pacific Employers Ins. Co. v. Industrial Accident Comm'n, but I'm wondering who applied it to the DOMA. GertrudeTheTramp 06:38, 11 January 2007 (UTC)

It has been made many times. For one, Dahlia Lithwick made the point in Slate: "The legal truth is that conservatives never needed DOMA in the first place—hysterical posturing notwithstanding, it's by no means a given that other states would be forced to recognize Massachusetts marriages. For one thing, there is an established trapdoor to the full faith and credit clause: The courts have long held that no state should be forced to recognize a marriage sanctioned by another state if that marriage offends a deeply held public policy of the second state. States have been permitted to refuse to recognize marriages from states with different policies toward polygamy, miscegenation, or consanguinity for decades." Professor Barbara Cox made the same point on the News Hour. I'm 99.44% sure that it is in the cited references as well. I hope this helps. Robert A.West (Talk) 17:54, 13 January 2007 (UTC)

Sure do and thanks. GertrudeTheTramp 09:03, 17 January 2007 (UTC)

Reception

Should public reception/controversy, such as this guy's video, be listed? BTW; I'm not affiliated with that guy. Nqnpipnr 02:09, 18 August 2007 (UTC)