08/24/2009 05:12 am ET | Updated May 25, 2011

Gay, Gay, More Gay: Can't We All Just Get It Straight?

"Damn it," says Kenneth Cole in ads all over the fine city of New York. "Why are people not thinking straight about gay marriage?"

It is something we hear a lot. Some states have decided it is perfectly legal, (props, Iowa) while others saw special interests spend billions to ban it. (See also: Mormons in California.)

Lost in the hubbub over which states allow and which don't is the role of the United States government. The Supreme Court has ruled that the right to marry is fundamental and cannot be prohibited by any means other than a constitutional amendment.

That didn't stop President Clinton from signing into law -- quietly, during his reelection campaign -- one of the most wretched and discriminatory pieces of legislation Congress ever crafted: The Defense of Marriage Act.

According to this Act, states are free to ignore valid marriages between people in another state. So, a gay couple legally married in Iowa who moves to Missouri can be told they aren't married there. Also, it defines marriage as a legal union between one man and one woman for federal purposes. So the legally married couple in Iowa can't file a Federal income tax return as "Married." As far as the United States is concerned, these people are roommates. This happened in Florida with older hetero citizens who wanted to get domestic partnership and were told this would not be counted.

The Defense of Marriage Act is a full-on head butt to the Full Faith and Credit clause of the U.S. Constitution, to wit: states must respect "public acts, records, and judicial proceedings" of other states. See the problem, America?

A state that recognizes same-sex marriage is entitled to have its "public act, record, and judicial proceeding" (marriage is arguably all three) respected by all the other states. Except in the case of marriage, when The Act sticks its nose in and says, "It's fine, Other States. The Full Faith and Credit Clause doesn't apply here, see...Congress and Bill Clinton said so!"

We may be close to an answer. Massachusetts AG Martha Coakley filed suit this month against the United States, pointing out that the Defense of Marriage Act runs afoul of the Constitution. Sure there have been many suits before this one -- not amounting to anything -- but Mass. is uniquely positioned since it's one of a handful that has same-sex marriage on the books. The issue is Constitutional -- not a states' rights one.


Surrounded by the deafening silence of an unsupportive White House (President O doesn't support SSM on religious grounds), we are still likely years from knowing how the Massachusetts' suit will end up. But we should be encouraged that the conversation seems to be starting in an intellectually honest manner.


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