DOMA was always a terrible deceitful law, designed not to defend marriage but to allow Massachusetts judges to slowly introduce same-sex marriage without the rest of the country enacting a Federal Marriage Amendment. It violates the Constitution’s Full Faith and Credit clause and needs to be replaced with a new set of laws. Whether the Supreme Court lets it stand or throws out parts of it is nothing more than a distraction to getting to a resolution, as is the case with their decision on California’s Prop 8.
DOMA should be replaced – right now, before these useless decisions – with a set of three federal laws that truly protect marriage and equal rights, while also giving same-sex civil unions all the 1001 federal tax benefits that DOMA currently deprives them of.
The proper reading of the Full Faith and Credit clause, one that gives it full faith and credit, is that it’s supposed to erase state lines with regard to legal acts and records, so that they apply in every state. When a state declares a legal act or status such as marriage, it is supposed to be given full faith and credit by all the other states, and not vanish or change by crossing a state line. When states dispute a legal act or record’s validity, the constitution says the Congress may, by general laws, resolve the dispute by setting a uniform standard that every state then follows. DOMA on the other hand simply said “states can ignore the Constitution regarding same-sex marriages.” Congress shirked its duty to “prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof” so that “full faith and credit is given in each state to the public acts, records, and judicial proceedings of every other state” as the Constitution demands.
But it is not too late for Congress to prescribe the manner in which marriage is proved and the effect thereof. They should prescribe that the effect of marriage is to approve and allow the couple to have procreative sexual intercourse and create people together from their own genes. Together with another law that prohibited creating people by any means other than the union of a man and a woman’s unmodified sperm and egg, the laws would prohibit states from offering marriage to couples that are prohibited from procreating together, as well as prohibit states from prohibiting a married couple from procreating naturally together.
A third law should give same-sex couples the federal marriage benefits they seek, if they are joined in state Civil Unions defined as “marriage minus conception rights” so that they do not approve and allow the couple to create people. There’d be no need to write any complicated new laws, just one law saying that Civil Unions defined that way would be treated as if they were marriages for all federal purposes. And states would soon enact these Civil Unions because they are not substantially identical to marriage, which has been permanently preserved as the union of a man and a woman.
Not only would this resolve the marriage debate, it would also help resolve the Transgender debate, because it would establish that people only have a right to reproduce as the sex they were born as. Too many kids are being cruelly misled about the possibility of becoming the other sex, and establishing this limit would put an end to the madness and begin helping kids instead of harming them.