In Defense of the Defense of Marriage Act
Published: May 30, 1996
To the Editor:
Prof. Laurence H. Tribe (Op-Ed, May 26) articulates a sound legal argument that Congress has no constitutional power to confer upon the discretion of the states the authority of the proposed Defense of Marriage Act, which would allow states to deny recognition to same-sex marriages that might be accorded legal status in other states.
But legal acumen may not suffice here. Judicial constitutional declarations on issues like homosexuality, abortion and capital punishment are really premised on public policy explicitly or implicitly espoused.
Legal reasoning of such constitutional issues examines not only the case facts and relevant legal principles, but inevitably the prevailing social environment and commonly shared values.
It is doubtful that same-sex marriages will satisfy the latter, policy prongs of the test. The precedent of the Full Faith and Credit Clause, as expounded by Professor Tribe, will not prevail in this debate. As Justice Frankfurter has written, the ultimate touchstone of constitutionality is the Constitution itself, and not what we have said about it. This freedom has accommodated our changing views on issues like segregation, affirmative action and, as time will tell, same-sex marriages. Today, the marriage act is defensible.
MICHAEL MANOUSSOS Mineola, L.I., May 28, 1996
The writer is an adjunct assistant professor of law and politics at SUNY Stony Brook.