Monday, March 23, 2009

Homophobia or the Public Policy exception to the Full Faith and Credit Clause?

Rep. Frank Calls Justice Scalia a 'Homophobe'

Congressman Barney Frank said that he hopes the Defense of Marriage Act (DOMA) does not have a hearing before the United States Supreme Court because Antonin Scalia is a homophobe and has enough votes to support the Act's constitutionality.

While I respect Congressman Frank's opposition to the Defense of Marriage Act, Justice Scalia's anticipated support for the Act is not predicated on homophobia. The Full Faith and Credit Clause was enacted by the founders to keep States from ignoring the judicial judgments of other States or giving defendants the ability to hide in other states to keep judgments from being enforced against them. The clause has also been extended to the legislative actions of states. However, the Supreme Courts has also recognized an exception to the Full Faith and Credit Clause commonly referred to as the "Public Policy" exception. The Public Policy exception keeps States from having to adopt laws or recognize judgments that are in direct conflict with their public policy. DOMA rests of the recognition of this exception.

This is not the first time that the question of the full faith and credit clause has been questioned regarding marriage. States have different marriage laws based on "sanguinity." Sanguinity is simply blood test. Are the people getting married related? Are they cousins? All states prohibit incest but some allow cousins to marry. Does this mean that a State must recognize the marriage of cousins when it bans them? The court has not weighed in here, but the public policy exception would indicate that it does not.

Proponents of same sex marriage also comment that the Equal Protection Clause should be used to force states to recognize their marriage. They lay their claim on the grounds of Loving vs. Virginia (388 U. S. 1). In that case, the Supreme Court struck down Virginia's law prohibiting whites and blacks to marry. However, to date, the United States Supreme Court has not accepted sexual preference as a "protected class" like race and gender. Same sex proponents are trying to use Loving vs. Virginia to bootstrap themselves into protected class status and thus fall under the protections of the Equal Protection Clause. If same sex marriage is accepted under either theory, then the question of what defines marriage will become interesting. Will it open the door for polygamists?

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