Toward a Less Perfect Union

By Laurence H. Tribe

Published by the New York Times, May 26 1996

Laurence H. Tribe is a professor of constitutional law at Harvard Law School.

CAMBRIDGE, Mass. There is more than a little irony in the so called Defense of Marriage Act, the proposed Federal law that would allow states to deny recognition to same sex marriages that might be accorded full legal status in other states.

It is ironic, first, that such a measure should be defended in the name of states' rights. Our Constitution's principal means of protecting state sovereignty is to limit the national Government to certain enumerated powers ‹ but these powers do not include any authority to invite some states to disregard the official acts of others. And it is ironic, second, that the first such invitation ever extended by Congress should deal with marital union. The Constitution's principal device for assuring a "more perfect union" is the Full Faith and Credit Clause, which requires that each state must fully credit "the public acts, records, and judicial proceed ings of every other state." More than half a century ago, the Supreme Court described the clause as " a nationally unifying force" that transformed the individual states from "independent foreign sovereignties, each, free to ignore rights and obliga tions" created by the others, into integral parts "of a single nation, in which rights . . . established in any [state] are given nationwide application."

The Defense of Marriage Act aims to counter the possibility that Hawaii's courts will legalize same-sex marriages, prompting gay couples to flock to the islands to be wed and return to their home states to claim the benefits of civii marriage. Defenders of this novel statute are fond of quoting the 10th Amendment: "The powers not delegated to the United States by the Constitution . . . are reserved to the states respectively, or to the people." But that very principle condemns the proposed statute, for the Constitution delegates to the United States no power to create categorical exceptions to the Full Faith and Credit Clause. To be sure, the clause does empower Congress to enact "general laws" to "prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." But that is a far cry from power to decree that official state acts offensive to a majority in Congress need not even be recognized by states that happen to share Congress's view. Some claim that a law inviting states to give no effect to certain acts of other states is a general law prescribing the "effect" of such acts. But that is a play on words, not a legal argument. The Full Faith and Credit Clause cannot be read as a fount of authority for Congress to set asunder the states that this clause so solemnly brought together.

Such a reading would mean, for example, that Congress could decree that any state was free to disregard any Hawaii marriage, any California divorce, any Kansas default judgment, any punitive damage award against a lawyer ‹ or any of a potentially endless list of official acts that a Congressional majority might wish to denigrate. This would convert the Constitution's most vital unifying clause into a license for balkanization and disunity.

Defenders of the proposed law cite judicial decisions allowing one state to decline to enforce certain determinations of another on "public policy" grounds‹marriages entered in one state, for example, to evade the bigamy laws of the state where the partners live. But states need no Congressional license to deny effect to whatever marriages (or other matters) may fall within this category. They can do so on their own. The only authority the proposed statute could possibly add to the discretion states already possess would be authority to treat a sister state's binding acts as though they were the acts of a foreign nation‹authority that Congress has no constitutional power to confer.