In that article what I think found is that it had to do with the way the Justices ruled in Lawrence v Texas and the idea of a “public policy exemption” to the Full Faith and Credit Clause of the Constitution. One needs to combine the Full Faith and Credit Clause of the Constitution with the Equal Protection Clause of the Fourteenth Amendment to get passed a “public policy exemption” to the Full Faith and Credit Clause of the Constitution.

Justice O’Connor used the Equal Protection Clause in striking down Bowers in Lawrence v Texas. He also suggested that laws distinguishing between heterosexuals and homosexuals, which are supported by a legitimate state interest such as “preserving the traditional interest of marriage,” would satisfy rational basis review under the Equal Protection Clause. Scalia’s brief seemed to support that opinion when he noted that marriage was in trouble.

However, the other five in the majority in Lawrence v Texas used the Due Process Clause of the Fourteenth Amendment in striking down Bowers (and now that I read this I remember some gay attorney friends being pissed that the EPC of the 14th wasn’t more generally used). The author of the above article says that “the majority in Lawrence, undoubtedly aware of the potential ramifications of the decision beyond the ability of states to criminalize sexual acts between members of the same sex, noted that Lawrence did not involve the issue of ‘whether the government must give formal recognition to any relationship that homosexual persons may enter.’”

So I guess Lambda Legal thought the better of a test of the DOMA at that time because of a review of the majorit decision in Lawrence v Texas. My guess, however good a guess a laymen might have, is that might be changing.

The reason that the Defense of Marriage Act isn’t currently being challenged by Lambda Legal and other gay groups is out of fear that the current Supreme Court might invalidate(or at least carve out a vary narrow anti-gay exception to) the “full faith and credit clause.” They are waiting for more moderate Democratic and Republican appointees who would be more likely to uphold the “full faith and credit” clause.

That clause, Article IV section 1, states:

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.

This simply means that the public acts and records of other states must be duly recognized by every state. It does not give a state the power to use its laws to force a change in the laws of other states.

Also, in calling the Defense of Marriage Act unconstitutional, John is ignoring the second part of the clause (which I put in bold).

All that being said, the paper is correct. The Defense of Marriage Act is patently unconstitutional and any fair reading of the “full faith and credit” clause of the Constitution would require states to recognize legally binding marriages in other states.

The whole “homosexual activists” scare mongering is a bit offensive, but oddly enough, the Washington Times got it right on their reading of the Constitution. Hopefully Obama can appoint a few fair-minded judges who aren’t going to void the “full faith and credit” clause, and we will have legally recognized marriage equality in this country.

Moon brags about using the paper to “influence” America and it has. The nation would not be as right wing and the Republican Party would not depend on a base of homphobes and anti-science theocrats absent Moon’s “efforts.”

http://tinyurl.com/54dpz

http://tinyurl.com/a564bs