[Congressional Record Volume 142, Number 82 (Thursday, June 6, 1996)]
[Senate]
[Pages S5931-S5933]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 UNCONSTITUTIONALITY OF S. 1740, THE SO-CALLED DEFENSE OF MARRIAGE ACT

  Mr. KENNEDY. Mr. President, S. 1740, the so-called Defense of 
Marriage Act, raises serious questions about the authority of Congress 
to limit the effect of a State court judgment in other States.
  To assist the Senate in its consideration of S. 1740, I asked Harvard 
Law School Professor Laurence H. Tribe, one of the most respected 
constitutional scholars in the Nation, to review the bill and its 
constitutionality. Professor Tribe has done so and has concluded 
unequivocally that enactment of S. 1740 would be an unconstitutional 
attempt by Congress to limit the full faith and credit clause of the 
Constitution.
  Mr. President, assaulting the Constitution is hardly defending 
marriage. I believe that all Members of Congress will be interested in 
Professor Tribe's analysis, and I ask unanimous consent that the text 
of his letter be printed at this point in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                     May 24, 1996.
     Hon. Edward M. Kennedy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Kennedy: You have asked me whether the 
     Constitution empowers Congress to enact Section 2(a) of S. 
     1740, which calls itself the Defense of Marriage Act and 
     which would amend 28 U.S.C. 1738 by amending a new section 
     1738C to exempt ``same sex * * * marriage[s]'' from the reach 
     of the Constitution's Full Faith and Credit Clause, Art. IV, 
     sec. 1, cl. 1, by authorizing any State choosing to do so to 
     deny all ``effect to any public act, record, or judicial 
     proceeding'' by which another State either recognizes such 
     marriages as valid and binding, or treats such marriages as 
     giving rise to any ``right or claim.''
       My exclusive focus in this analysis is the question of 
     affirmative constitutional authority in light of the Full 
     Faith and Credit Clause, which the Supreme Court over half a 
     century ago aptly described as ``a nationally unifying 
     force,'' ``alter[ing] the status of the several states as 
     independent foreign sovereignties, each free to ignore rights 
     and obligations created under the laws or established by the 
     judicial proceedings of the others, by making each an 
     integral part of a single nation, in which rights * * * 
     established

[[Page S5932]]

     in any [state] are given nationwide application.'' Magnolia 
     Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943). I have not 
     found it necessary to pursue the further inquiry that would 
     be required if one were to conclude that Congress does have 
     affirmative authority to create the proposed exception to the 
     Full Faith and Credit Clause for same-sex marriages--namely, 
     whether such an exception would nonetheless violate a 
     negative prohibition like that of the Due Process Clause of 
     the Fifth Amendment, see Adarand Constructors, Inc. v. Pena, 
     115 S. Ct. 2097, 2111-16 (1995); Bolling v. Sharpe, 347 U.S. 
     497, 500 (1954), on the ground that it singles out same-sex 
     relationships for unfavorable legal treatment for no 
     discernable reason beyond public animosity to homosexuals, 
     cf. Romer v. Evans, 1996 WL 262293, *9 (U.S. May 20, 1996).
       Whether this fairly characterizes the Defense of Marriage 
     Act and would in fact be a fatal constitutional flaw in the 
     Act, or whether part or all of the Act could be successfully 
     defended against such a Due Process Clause attack, are 
     questions on which I express no view here, and indeed are 
     questions that it would be unwise to address in light of the 
     conclusion I think one must reach on the anterior question of 
     affirmative congressional power. On that question--and for 
     reasons having absolutely nothing to do with anybody's views 
     on the merits of same-sex marriage or homosexual 
     relationships, and nothing to do with anybody's views about 
     Romer v. Evans or other equal protection cases--my conclusion 
     is unequivocal: Congress possesses no power under any 
     provision of the Constitution to legislate any such 
     categorical exemption from the Full Faith and Credit Clause 
     of Article IV. For Congress to enact such an exemption--
     whether for same-sex marriages or for any other 
     substantively defined category of public acts, records, or 
     proceedings--would entail an exercise by Congress of a 
     ``power[] not delegated to the United States by the 
     Constitution''--a power therefore ``reserved to the 
     States'' under the Tenth Amendment. The proposed 
     legislation is thus plainly unconstitutional, both because 
     of the basic ``limited-government'' axiom that ours is a 
     National Government whose powers are confined to those 
     that are delegated to the federal level in the 
     Constitution itself, and because of the equally 
     fundamental ``states'-rights'' postulate that all powers 
     not so delegated are reserved to the States and their 
     people.
       As many of this statute's proponents are fond of reminding 
     us, the Tenth Amendment says in no uncertain terms that the 
     ``powers not delegated to the United States by the 
     Constitution, nor prohibited by it to the States, are 
     reserved to the States respectively, or to the people.'' But 
     it is that basic axiom, as I will explain below, that most 
     clearly condemns the proposed statute. The Supreme Court 
     explained in New York v. United States, 505. U.S. 144, 155-56 
     (1992), that the inquiry ``whether an Act of Congress invades 
     the province of state sovereignty reserved by the Tenth 
     Amendment'' is a ``mirror image[]'' of the inquiry ``whether 
     an Act of Congress is authorized by one of the powers 
     delegated to Congress . . . in the Constitution.'' Thus, in 
     United States v. Lopez, 115 S. Ct. 1624 (1995), the Supreme 
     Court struck down the Gun-Free School Zones Act of 1990 
     (``GFSZA'') on the ground that, because neither the Commerce 
     Clause nor any other provision of the Constitution delegated 
     to the Federal Government the power that it sought to 
     exercise in the GFSZA, Congress had usurped states' rights in 
     enacting that seemingly sensible measure. The Court stressed, 
     as a matter of ``first principles,'' that requiring Congress 
     to confine itself to those ``few and defined'' powers 
     delegated to the National Legislature, id. at 1626 (quoting 
     James Madison, The Federalist No. 45), was the Constitution's 
     most fundamental device for ``ensuring[] protection of our 
     fundamental liberties', '' and ``reduc[ing] the risk[s] of 
     tyranny and abuse.'' Id. at 1626 (quoting Gregory v. 
     Ashcroft, 501 U.S. 452, 458 (1991)).
       As a constitutional scholar sometimes identified as 
     ``liberal,'' I was apparently expected by many to side with 
     the Lopez dissenters--Justices Stevens, Souter, Ginsburg, and 
     Breyer. In fact, however, I had publicly predicted, and 
     publicly applauded, the Court's Lopez decision, believing 
     strongly that Congress, however, sound its policy objectives, 
     has a solemn duty to take seriously the constitutional 
     boundaries of its affirmative authority--something I believe 
     it failed to do when enacting the GFSZA, and something I 
     believe it would even more clearly fail to do were it to 
     enact the Defense of Marriage Act.
       Who but a madman could favor handgun possession near 
     schools? Who but a scoundrel could oppose the defense of 
     marriage? But of course that isn't the issue. We must look 
     beneath these plain vanilla wrappings to see the power grabs 
     they conceal. In the ``defense of marriage'' context, that 
     power grab is remarkably clear once one strips away the 
     emotion-laden rhetoric that surrounds the issue.
       The defenders of the proposed new 28 U.S.C. Sec. 1738C, 
     conceding that the Constitution requires them to identify an 
     affirmative delegation of power to Congress as the source of 
     the lawmaking authority they would have Congress exercise, 
     can point only to the Full Faith and Credit Clause itself, 
     and to this statement in particular: ``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 proposed law's defenders, without any 
     evident embarrassment or sense of irony, claim that a law 
     licensing States to give no effect at all to a specific 
     category of ``Acts, Records and Proceedings'' is a general 
     law prescribing ``the effect'' of such acts, records and 
     proceedings. That is a play on words, not a legal 
     argument. There may be legitimate debate about precisely 
     what sorts of national legislation this clause empowers 
     Congress to enact so as to mandate sister-state 
     enforcement of various state policies which, absent such 
     effectuating legislation, the States might otherwise be 
     free to disregard notwithstanding the Full Faith and 
     legislation, the States might otherwise be free to 
     disregard notwithstanding the Full Faith and Credit 
     Clause. But it is as plain as words can make it the 
     congressional power to ``prescribe . . . the effect'' of 
     sister-state acts, records, and proceedings, within the 
     context of the Full Faith and Credit Clause, includes no 
     congressional power to prescribe that some acts, records 
     and proceedings that would otherwise be entitled to full 
     faith and credit under the Full Faith and Credit Clause as 
     judicially interpreted shall instead to be entitled to no 
     faith or credit at all!
       The reason is straightforward: Power to specify how a 
     sister-state's official acts are to be ``proved'' and to 
     prescribe ``the effect thereof'' includes no power to decree 
     that, if those official acts offend a congressional majority, 
     the need to be given no effect whatsoever by any State that 
     happens to share Congress's substantive views. To read the 
     enabling sentence of the Full Faith and Credit Clause to 
     confer upon Congress a power to delegate this sort of 
     nullification authority--to read it, in other words, as the 
     proponents of this anti-same-sex-marriage-law must read it if 
     they are to treat it as the source of power for the 
     legislation they advocate--would entail the conclusion that 
     congress may constitutionally decree that no Hawaii marriage, 
     no California divorce, no Kansas default judgment, no 
     punitive damages award by any state court against a civil 
     rights lawyer--to suggest a few of infinitely many possible 
     examples--need to be given any legal effect at all by any 
     State that chooses to avail itself of a congressional license 
     to ignore the Full Faith and Credit Clause. The enabling 
     sentence simply will not bear so tortured a reading.
       The claim of its supporters that this measure would somehow 
     defend states' rights by enlarging the constitutional 
     authority of States opposing same-sex marriage at the expense 
     of the constitutional authority of States accepting same-sex 
     marriage rests on a profound misunderstanding of what a 
     dedication to ``states' rights'' means. If this is a 
     protection of states' rights, then it would equally protect 
     states' rights for Congress, without any affirmative 
     authorization in the Constitution, to license any State 
     wishing to do so to deny basic police protection to same-sex 
     couples visiting the State after getting married in a home 
     State that recognizes same-sex marriage, despite the 
     Privileges and Immunities Clause, Art. IV, Sec. 2, cl. 1. Our 
     Constitution protects the rights of the States by assuring 
     their equal status in the Union, and by guaranteeing that 
     Congress may legislate only pursuant to a delegation of power 
     in the Constitution. The proposal federal law transgresses 
     both of these principles. That it does so in a manner that 
     involves licensing some States to take actions that the 
     Constitution itself would otherwise forbid--and in this sense 
     enlarges the powers of States availing themselves of its 
     purported authorization--should not be permitted to deceive 
     anyone into mistaking this legislation for a law friendly to 
     principles of state sovereignty.
       Indeed, the proposed measure would create a precedent 
     dangerous to the very idea of a United States of America. For 
     if Congress may exempt same-sex marriage from full faith and 
     credit, then Congress may also exempt from the mandate of the 
     Full Faith and Credit Clause whatever category of judgments--
     including not only decrees affecting family structure but 
     also specified types of commercial judgments--a majority of 
     the House and Senate might wish to license States to 
     nullify at their option. Such purported authority to 
     dismantle the nationally unifying shield of Article IV's 
     Full Faith and Credit Clause, far from protecting states' 
     rights, would destroy one of the Constitution's core 
     guarantees that the United States of America will remain a 
     union of equal sovereigns; that no law, not even one 
     favored by a great majority of the States, can ever reduce 
     any State's official acts, on any subject, to second-class 
     status; and, most basic of all, that there will be no ad 
     hoc exceptions to the constitutional axiom, reflected in 
     the Tenth Amendment's unambiguous language, that ours is a 
     National Government whose powers are limited to those 
     enumerated in the Constitution itself.
       The basic point is a simple one: The Full Faith and Credit 
     Clause authorizes Congress to enforce the clause's self-
     executing requirements insofar as judicial enforcement alone, 
     as overseen by the Supreme Court, might reasonably be deemed 
     insufficient. But the Full Faith and Credit Clause confers 
     upon Congress no power to gut its self-executing 
     requirements, either piecemeal or all at once.
       If judicial precedent for this textually and structurally 
     evident conclusion is sought, it must be sought in analogous 
     areas rather than in the context of the Full Faith and Credit 
     Clause itself, for Congress has never attempted to exercise 
     its Full Faith and Credit enforcement power to nullify rather

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     than to enforce the mandate of that clause. In perhaps the 
     closest analogy, the Supreme Court has interpreted another of 
     the Constitution's few clauses expressly authorizing Congress 
     to enforce a constitutional mandate addressed to the States 
     to mean that Congress may effectuate such a mandate but may 
     not ``exercise discretion in the other direction [by] 
     enact[ing]'' statutes that ``dilute'' the mandate's self-
     executing force as authoritatively construed by the Supreme 
     Court. Katzenbach v. Morgan, 384 U.S. 641, 651 n. 10 (1966) 
     (Section 5 of the Fourteenth Amendment). A similar principle 
     must guide interpretation of the Full Faith and Credit 
     Clause, whose text leaves no real doubt that its self-
     executing reach, as authoritatively determined by the Supreme 
     Court, may not be negated or nullified, in whole or in part, 
     under the guise of legislatively enforcing or effectuating 
     that clause. This is especially so in light of ``the strong 
     unifying principle embodied in the Full Faith and Credit 
     Clause looking toward maximum enforcement in each state of 
     the obligation's or rights created or recognized by . . . 
     sister states . . . '' Hughes v. Fetter 341 U.S. 609, 612 
     (1951).
       It would do violence not only to the letter but also to the 
     spirit of the Full Faith and Credit Clause to construe it as 
     a fount of affirmative authority for Congress--if I may be 
     excused for borrowing a marriage metaphor--to set asunder the 
     States that this clause brought together. The Constitution's 
     plan to form a ``more perfect Union,'' in the preamble's 
     words, would be inexcusably subverted by treating its most 
     vital unifying provision as a license for legislation that 
     does not unify or integrate but divides and disintegrates.
       It is no answer at all to say that some purported 
     marriages--e.g., marriages entered into in one State by 
     residents of another in order to evade the latter State's 
     prohibition against bigamy--might in any event be entitled to 
     no ``faith and credit'' under Art. IV, Sec. 1, cl. 1, as 
     occasionally construed by the courts. To the degree that this 
     is in fact true of any given category of marriages, divorces, 
     or other official state acts--itself a complex and 
     controversial question (see Robert H. Jackson, Full Faith and 
     Credit--the Lawyer's Clause of the Constitution, 45 Colum. L. 
     Rev. 1, 27 (1945); Douglas Laycock, Equal Citizens of Equal 
     and Territorial States, 92 Colum. L. Rev. 249, 313-37 
     (1992))--all that follows is that, with respect to such 
     marriages, divorces, or other official acts, the proposed 
     federal legislation would be entirely redundant and indeed 
     altogether devoid of content.
       In any such context, ``[e]ven if the Federal Government 
     possessed the broad authority to facilitate state powers, in 
     this case there would be nothing that suggests that States 
     are in need of federal assistance.'' Rubin  v. Coors Brewing 
     Co., 115 S. Ct. 1585, 1591 (1995) (rejecting on First 
     Amendment grounds a ``let-Congress-assist-the-States'' 
     argument in support of a federal regulation of beer 
     advertising). The essential point is that States need no 
     congressional license to deny enforcement of whatever sister-
     state decisions might fall within any judicially recognized 
     full faith and credit exception. The only authority the 
     proposed statute could possibly add to whatever discretion 
     States already possess would be authority to treat a sister 
     State's binding acts as though they were the acts of a 
     foreign nation--authority that Congress has no constitutional 
     power to confer.
           Sincerely,
     Laurence H. Tribe,
     Ralph S. Tyler, Jr.,
       Professor of Constitutional Law, Harvard Law School.

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