What do DOMA and the Wisconsin have in common?

View the webcast of the Sept. 4 hearing.

Testimony of Michael P. Farris
U. S. Senate

President, Patrick Henry College

Congress has only exercised its Article IV § 1 authority four times. In 1790, Congress codified the functions of the Full Faith and Credit clause (28 U.S.C. § 1738). In 1980, Congress passed the Parental Kidnapping Prevention Act (28 U.S.C. § 1738A). In 1994, the Full Faith and Credit Child Support Orders Act of 1994 (28 U.S.C. § 1738B) became law. Finally, in 1996, Congress passed DOMA.

Congress' exercise of its authority to legislate under the Full Faith and Credit Clause has never been successfully challenged in any court. Since there is no legal precedent by which the constitutionality of DOMA can be measured, the best available standard is found in these prior acts of Congress.

The law of 1790 was merely procedural in character. It does not serve as a precedent for DOMA. However, the 1980 and 1994 laws established clear legislative precedents that demonstrate that Congress is fully within its authority to enact DOMA.

Both of these prior enactments deal with disputes arising in the area of family law. Both of these statutes are closely connected to the legal issues of marriage. The 1980 Parental Kidnapping Act was designed to bring national uniformity to the recognition of child custody decrees. Citing a growing number of cases which involved interstate disputes over child custody decrees and the alarming practice of "frequent resort to the seizure, restraint, concealment, and interstate transportation of children," Congress passed this law to determine which decrees would be given full faith and credit.

Congress made a substantive policy decision that child custody decrees would not be granted full faith and credit if the child had not lived in the forum for at least six months prior to the events in question. 28 U.S.C. § 1738A(b)(4) and (c)(2). A supplemental rule was adopted governing residency questions when the child had been removed from his home state by a contestant to the proceeding, i.e., parental kidnapping. §1738A(c)(2)(A)(ii).

The 1994 enactment was designed to settle disputes between states over which decrees granting child support would be enforced. 28 U.S.C. §1738B. Similar policy questions were answered to bring uniformity to a hopelessly conflicted area of litigation.

These congressional acts have guided the courts in thousands of cases. The issue of the constitutionality of these provisions has never been raised successfully.

There is nothing in the language or history of Article IV § 1 of the Constitution that would indicate that Congress must wait until there is a morass of existing cases and numerous bad experiences to bring peace and uniformity to the interstate practice of family law. In enacting the Defense of Marriage Act, Congress has acted preemptively to settle problems before they arise.

Congress either has the power to establish rules concerning the full faith and credit recognition of family law acts of the several states or it does not. There is no logical basis for concluding that, on the one hand, Congress can decree that child kidnapping shall never form the basis for a valid custody determination, yet it cannot dictate which marriages shall be deemed valid for the purposes of full faith and credit recognition.

Advocates of same-sex marriage will argue that there is a world of factual difference between such a marriage and parental self-help in a custody dispute. Such differences may indeed make a difference to courts in evaluating equal protection challenges to DOMA, but they should have no effect on a determination of whether Congress had the authority to act under Article IV § 1.

Congress has made a policy decision concerning the recognition of valid decrees concerning the custody of children. It can certainly make other policy determinations connected to the interstate recognition of other decrees and acts of other aspects of family law.

The Congressional Research Service opines in its exhaustive The Constitution of the United States of America: Analysis and Interpretation,

It does not seem extravagant to argue that Congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the Union and that no other kind shall. Or to speak in more general terms, Congress has under the clause power to enact standards whereby uniformity of state legislation may be secured as to almost any matter in connection with which interstate recognition of private rights would be useful and valuable.

Id.

at 870.

[/I]DOMA should be construed consistently with the laws concerning uniformity of custody decrees and child support awards. Congress can declare which decrees are enforceable in other states and which are not. Congress could, consistent with this legislative precedent, say that same-sex marriages will not be recognized in the United States by any jurisdiction other than the one in which it was originally performed. Congress has taken a much more modest approach. All it has said is that sister states are not compelled to recognize such marriages.

DOMA is perfectly consistent with the precedent created in the legislative history and should be held to be constitutional.

End