I did not say that Section 2 is constitutional, just that the reasoning that might invalidate Section 3 would not necessarily apply to Section 2 (or at least that’s what I meant, as Ken Upton correctly pointed out). Some scholars’ view when the law was enacted in 1996 was that Section 2 was either superfluous or unconstitutional. Congress claimed that Section 2 was an exercise of its power to “prescribe … the Effect” of things related to marriage. Some people argued that the power to prescribe effect is not the power to dictate that there be NO effect. The Supreme Court has interpreted the Full Faith and Credit Clause to apply more stringently to Court judgments than to laws of other states; marriages are effected by administrative act, not judicial proceeding, and thus probabky subject to a “public policy” exception; there is no case law holding that State B was required by the Clause to recognize a marriage from State A. On the law around the Full Faith and Credit Clause, see my article Sexual Judgments: Full Faith and Credit and the Relational Character of Legal Sex, http://harvardcrcl.org/wp-content/uploads/2011/03/52-80.pdf. But even if DOMA Section 2 were within Congress’s Full Faith and Credit power, it would still have to satisfy constitutional equal protection requirements, which would be harder to do if the Supreme Court were to embrace intermediate scrutiny for sexual orientation discrimination when it decides Windsor.

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

I know that sometimes in law, when B is dependent on A, and A is struck down, that B is not automatically struck down. But, on the grounds of constitutional law, the Full Faith and Credit Clause which Section 2 of the Defense of Marriage Act conflicts,

Article IV, Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Wouldn’t any act of Congress that is of lesser tier, Constitutionally and legally, have to yield to the supremacy of the higher tier of law? For example, a statute of the USC would not supersede a conflicting Constitutional statute. Further, in state law, a statute or constitutional amendment to a state constitution which conflicts with a Federal Constitutional statute would be in conflict and therefore invalid if it directly infringes on the legal rights of a citizen which The Constitution permits a citizen to exercise. So I do not see how Section II of DOMA would hold up if a gay couple in Washington State who gets married and moved to Idaho could not be recognized as married. Washington says their married, provides them a legal certificate of marriage which entitles them to both state and Federal benefits related to marriage, the State of Idaho would have no grounds in which to deny them State benefits or Federal Benefits of any kind. The Full Faith and Credit clause would coerce the State of Idaho to recognize that Marriage Certificate, grant them access to the legal benefits defined to married couples in The State of Idaho, and would be required to grant them access to the courts of that state in relation to Family Court, Divorce Court or Probate Courts. To deny that access would be illegal under the Full Faith and Credit Clause.

That’s my argument. I don’t see how this basic reasoning would be incorrect under these set of conditions.

David B. Cruz
Professor of Law.
University of Southern California Gould School of Law.
Los Angeles, CA 90089-0071.
U.S.A.

First, Vicki Jackson is not just a "Harvard lawyer." She's a Harvard law professor and expert on federal courts and federal jurisdiction, including the law of standing.

Second, this article states (as of the time of my comment): "The court asks parties to respond to whether the court has standing to hear the DOMA case because the U.S. Justice Department, the party that won the case at the district court, appealed the case as opposed to the losing side." The Supreme Court did not specify why it asked the parties to brief the standing issues; this is speculation. It's also imprecise. The U.S., represented by the DOJ, was a defendant at trial in Windsor; although it agreed with Edie Windsor that DOMA Section 3 is unconstitutional, the U.S. was still charging her inheritance tax they would not charge someone they recognized as a surviving spouse. That action was held unconstitutional by the trial court. Thus, technically, the U.S. was a LOSING party at trial, so it should be held to have the authority to file a notice of appeal to the U.S. Court of Appeals for the Second Circuit.

The real question about the Solicitor General's standing to represent the U.S. then is whether the government's agreement that DOMA Section 3 is unconstitutional means there was not a "case or controversy" between Windsor and the U.S. in the sense that SCOTUS has held Article III to require for there to be federal jurisdiction. SCOTUS should conclude there is, given its precedent in INS v. Chadha, which struck down a law letting a single house of Congress veto an attempt by the government to deport someone, a law that the President there concluded was unconstitutional.

Third, DOMA has 2 operative provisions. At issue in Windsor and the other cases SCOTUS has been asked to review is Section 3, which requires the federal government to refuse to recognize valid legal marriages of same-sex couples. Section 2 of DOMA, in contrast, purports to give states permission to ignore marriages of same-sex couples from other states, as well as court judgments based on such marriages. A ruling in Windsor striking down Section 2 would not necessarily invalidate Section 3, which might be thought to serve different governmental interests than Section 2. A bill repealing Section 3 of DOMA thus might still be necessary even if the Court rules against Section 2.

Finally, the nitpick: The wording of question 5 seems a bit off: "What would happen if the Supreme Court applied heightened scrutiny to its ruling?" Levels of scrutiny under the Equal Protection or Due Process Clauses are applied by courts to laws or government actions, or by higher courts to lower court rulings themselves alleged to violate the Constitution; levels of scrutiny are not applied by courts to their own rulings as a general matter. So, it would be better to ask "What would happen if the Supreme Court applied heightened scrutiny in its ruling?"

David B. Cruz
Professor of Law.
University of Southern California Gould School of Law.
Los Angeles, CA 90089-0071.
U.S.A.