Regardless of what one feels about "gay marriage", the recent decision by the Supreme Court to review the case brings up an interesting Constitutional question. Namely, if, say, Maryland recognizes the union of two homosexual individuals as a "marriage," what is Virginia's obligation to treat those two individuals as a married couple?

Obviously, the Supreme Court has to get involved, because two states have differing and mutually exclusive interpretations (Virginia explicitly disallows it, Maryland explicitly allows it), but the "Full Faith and Credit Clause" obliges reciprocity.

The question I have, then, is about the "Defense of Marriage Act" which was somehow able to get around Artice IV. My understanding is that DOMA explicitly allowed individual states to decide for themselves (ala the Tiebout Model) but didn't force states to be reciporical.

What was the legal justification for this?

  • 2
    Again, why a downvote? Especially during the comment period, it is helpful to understand what constitutes good and bad here! Commented Dec 12, 2012 at 17:42
  • I think the answer to your question is provided in the link you provided : The supreme court ruled "And in the case of statutes...the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events". IOW, if another states law conflicts with the local statute then the local state is not required to honor the conflicting statute.
    – Dunk
    Commented Jan 30, 2013 at 23:08

5 Answers 5


Congress does not have to currently justify the laws it passes.

The checks and balance system works so that Legislature must pass a law in both sides of the Congress. Then the President must sign it or Congress can override a veto with 2/3 vote. Then the law can be challenged in court.

How ever to challenge the law's constitutionality you have to first have standing to bring a case. It is generally not enough to show that you may be wronged in the future but rather you have to show that you have been wronged. In this specific case you would either have to be a married gay couple from Maryland that had some right that exists for married people in Virginia denied to you to have cause to bring a case. Further it would need to be denied based upon the DOMA. If it is denied based upon existing Virginia law that is not cause to overturn the DOMA.

The state of Maryland is having its rights to decide what it will define as a marriage infringed. So the state of Maryland could have cause to bring a case against the United States. All you need would need to do is convince the State of Maryland to fight in court to affirm its state's rights. I suspect you have better odds of getting Gay Marriage passed in Texas (and getting them to pursue the case) than getting Maryland to fight for states rights since the precedent it would set would be used by other states against other laws(like Obamacare). In this case Maryland sits on its hands(metaphorically) to preserve the Federal Governments Rights to curtail states rights.

  • I think though that the Constitution is pretty clear about the Federal Governments right to curtail anything that the State does. Federal laws always supersede State laws.
    – user117
    Commented Dec 12, 2012 at 12:32
  • 5
    @user117 I disagree. The COURT has been fairly clear on that matter, but my reading of the constitution leads me to believe the Federal Government has authority only on enumerated powers. The broad interpretation of the commerce clause by the Judiciary has expanded that notion considerably.
    – JohnFx
    Commented Dec 19, 2012 at 3:16
  • One of the reasons that DOMA is currently fine is that laws are "constitutional" until someone challenges it. (As opposed to justification being required when the law is passed) Commented Dec 31, 2012 at 16:05
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    @SnakesandCoffee - That is basically what my answer says. Commented Dec 31, 2012 at 17:22
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    @Avi - Interestingly it is the so called "liberal wing" of SCOTS that pointed it out too. I am not sure they will use that as reason though. While I am hopeful they will affirming states rights here, should have repercussions on cases that they will want to oppose. Commented Mar 30, 2013 at 14:25

DOMA as a congressional statute could not violate the Full Faith and Credit Clause of the Constitution. Rather the mandate of the Full Faith and Credit Clause is on the states and their actions in response to DOMA. Just because DOMA allows states to define marriage on their own terms, does not create a conflict so long as, for example, Texas affords the same state rights to a married gay couple from Iowa while that couple is in their state as they would otherwise have afforded a straight married couple from Iowa.

Whats more, have already seen that play out in the courts. In 2009 a legally married gay couple from Massachusetts was given a divorce by a Texas judge, even though Texas law does not recognize the marriage. The Texas judge gave full faith to the Massachusetts marriage license and applied Texas divorce law as appropriate. This legal action, not the text of DOMA itself, is what could potentially run aground of the Full Faith and Credit Clause.

Congress also allows states to issue their own drivers licenses and set the standards for obtaining said license. It is entirely possible that a legal Ohio driver would fail a driving test in North Carolina due to ignorance of the differences in traffic laws between the two states. However, North Carolina does not test every Ohio driver pulled over in North Carolina for speeding, because they give Full Faith and Credit to that state's license. It is not unconstitutional for Congress to allow states to set up their own license requirements, but it would be unconstitutional for the North Carolina in this example to take action under that law to discriminate against Ohio drivers.


Full Faith and Credit is different from reciprocity. Reciprocity is a matter of agreement between states, on matters as to which the FF&C clause does not apply. FF&C is basically "automatic" reciprocity -- no need for an agreement.

The driver's license example is a matter of reciprocity, not FF&C -- the states have agreed to accept each others' license as a matter of convenience to citizens, notwithstanding differing state interests that could legitimately prevent FF&C from being applicable.

On matters of federal law at a minimum, FF&C requires states to honor other states' acts, records and judgments. So, if state A were to determine that a person has met the conditions necessary to exercise a federal right, state B must accept state A's decision as its own. FF&C is somewhat broader than that, but beyond federal rights it is easy to venture into the fuzzy realm of states not having the right to impose value judgments on others.

If the Supreme Court were to determine that there is a federal constitutional right for people of the same sex to marry, for example, then under FF&C any state would be obligated to honor a marriage from another state. Unless and until such a federal right is established, however, it is piecemeal at the state level, by state declarations of that right and reciprocity agreements between states.

This is similar to 2nd Amendment rights. Because the basic human right of armed self defense is a federal right, state A's determination that a person is qualified to exercise that federal right (the person is not a felon, not mentally ill, etc.) is binding on every other state. So, under FF&C a person with a concealed weapons "permit" should be able to exercise that federal right in any other state. But the states have not figured this out yet, and they are focusing on reciprocity agreements rather than FF&C.

I personally believe that these 2 issues establish a great litmus test for intellectual integrity. People on the left typically will say FF&C should be honored for same-sex marriage, while people on the right will typically say that FF&C should be honored for concealed carry. But it takes a particularly high level of integrity to admit that if one's "pet" issue should be honored under FF&C, then so should the other. Test your friends with this, it can be fun to observe the frustration.

  • I'm not certain that your comparison is valid - one is regarding a (constitutionally protected) action, the other is regarding a status. The equivalent would be for a state to restrict the action of getting married to someone of the same gender, while still acknowledging the status when it came from another state.
    – Bobson
    Commented Dec 23, 2013 at 14:55
  • Try taking a concealed carry permit to a state that doesn't allow them to exist.
    – Joshua
    Commented Mar 7, 2016 at 22:26

Federal DOMA does not test the full faith and credit clause so much as the 9th and 10th Amendments to the Constitution. Does the Federal government have the right to legislate something that is reserved for the states and that is not explicitly defined by the Constitution for Congress (or the Federal government)?

Now the individual state DOMA statutes may run into the Full Faith and Credit clause since some states acknowledge rights and privileges that other states do not. The Federal interest is in this equal application of federal laws and that people from one state are not adversely affected by the statutes of another state. Given that some states do acknowledge same-gender marriage, the rights of people cannot be infringed for other.

If a couple marries in Iowa and has the benefits of marriage in Iowa and then moves to a state like Kansas, does that Iowa marriage have the full faith and credit of a marriage in Kansas. Currently, no state asks you to re-license your marriage upon entering a new state. When such things as tax rates or other marriage privileges are not allowed for a couple married in a different state but allowed for couples married in another, there is a possible claim against the full faith and credit clause.

Whether federal or state, DOMA makes (or excludes) certain rights and privileges available only to heterosexual couples (e.g. taxes) that are not allowed for same-gender couples. This can be challenged if the couple shows the disparity and harm caused by the statute.

The claims against DOMA for harm and disparity may also invoke 14th amendment protection for equal protection and equal application of laws within a state to all citizens within that state.


There is no justification, and there cannot be. DOMA is purely political:

DOMA provides: "‘No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’."

This directly contradicts the FF&C Clause, which provides: "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."

The second sentence of the FF&C Clause does not give Congress the power to prescribe which of such acts, records and proceedings may be excluded or exempted from state law reciprocity. Therefore, the entirety of DOMA is unconstitutional.

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