May the Federal Government Define Marriage?

By:  Joe Wolverton, II, J.D.
May the Federal Government Define Marriage?

In the wake of the Supreme Court decision in U.S. v. Windsor, the federal government's power to define marriage is established.

In an article published on July 9, USA Today explained that in the wake of the Supreme Court’s ruling overturning the Defense of Marriage Act (DOMA), “The legal battle over same-sex marriage has shifted from the Supreme Court to state capitals and lower courts as supporters seek to build on their recent victories and opponents hope to thwart that progress.”

The piece reports that “lawyers representing same-sex couples filed a lawsuit in Pennsylvania on Tuesday and vowed to follow soon with others in North Carolina and Virginia. Those cases will be added to at least 11 pending from New Jersey to Hawaii.”

Also following in the wake of the Supreme Court’s 5-4 condemnation of traditional marriage, some observers worry that such will lead to the forced recognition of gay “marriage” in all 50 states because of the requirements of the Full Faith and Credit Clause of the Constitution. 

Some legal scholars are questioning whether the homosexual lobby and their allies in the press and in Congress may now use the Full Faith and Credit Clause as a sword to force their will upon the entire country. However, for those who hold the Constitution sacred and wish to avoid any sort of unnecessary tinkering with it, the analysis described above is faulty and misrepresents the intent of the Constitution, particularly the Full Faith and Credit Clause.

Several years ago, this very issue was addressed in a decision handed down by the U.S. District Court in Tampa, Florida. In that ruling, U.S. District Judge James Moody, Jr. correctly held that “the Supreme Court has clearly established that the Full Faith and Credit Clause does not require a State to apply another State’s law in violation of its own legitimate public policy. Florida is not required to recognize or apply Massachusetts’ same-sex marriage law because it clearly conflicts with Florida’s legitimate public policy of opposing same-sex marriage.”

Judge Moody’s opinion was correct and, more importantly, it was constitutionally sound. 

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