HYPOTHETICAL written by Chris Geidner.

********

JOHN DOE and JAMES DOE v. THE STATE OF GEORGIA

on writ of certiori to the Supreme Court of the United States

[December 10, 1997]

********

Justice Souter delivered the opinion of the Court.

Appellants John Doe and James Doe, married in a legal civil ceremony in Hawaii, sought and were granted custody of James Doe�s two children. On appeal, the State Supreme Court of Georgia reversed the custody award finding that the National Defense of Marriage Act, along with the Georgia Defense of Marriage Act, prohibited the state�s recognition of the Doe-Doe marriage. Appellants were granted certiori to determine whether the National Defense of Marriage Act is constitutional under both the Full Faith and Credit clause of Article 4, Section 1 of the U.S. Constitution and the equal protection component of the Due Process clause of the Fifth Amendment, and if not, whether the Georgia Defense of Marriage Act constitutes a "strong public policy" which would preclude the State from recognizing the Doe-Doe marriage under the Full Faith and Credit clause.

I

In deciding whether appellant�s argument that the National Defense of Marriage Act is unconstitutional the Court first looks to the intent of the Full Faith and Credit clause, and its applicability, if any, to the marriage contract. Since the Court�s historic ruling in the 1965 case of Griswold v. Connecticut 381 U.S. 479 (1965), we have many times expanded that "right of privacy older than the bill of rights." See Zablocki v. Redhail 434 U.S. 374 (1978) (holding that delinquent fathers cannot be denied the right to marry) & Turner v. Safely 482 U.S. 78 (1987) (holding that a prison inmate retains the right to marry). In Zablocki, the Court stated that "the right to marry is of fundamental importance," Id. and this Court finds that using the "critical examination" test suggested in Massachusetts Board of Retirement v. Murgia 427 U.S. 307, 312, 314 (1976), and utilized in Zablocki justifies the application of the Full Faith and Credit clause to the marriage proceedings. This is in full accordance with Zablocki, particularly in light of the Zablocki language which stated that "since the classification at issue here significantly interferes with the exercise of that right [to marriage], we believe that �critical examination� of the state interests advanced in support of the regulation is required." Id. Denying the application of the Full Faith and Credit clause to the civil proceeding of marriage is clearly offensive to this language. This principle has already been suggested by the New York Supreme Court in the case of Ram v. Ramharack 571 N.Y.S.2d 190 (N.Y.Sup.Ct.1991) (holding that a common-law marriage validly consummated in another state can be recognized in New York under the Full Faith and Credit Clause), and we see no critical or compelling reason to waver from this principle.

As the Full Faith and Credit clause applies to this case, however, we must examine, not simply the application of Full Faith and Credit to the proceeding of marriage, but more specifically, to the proceeding of same-sex marriage. This is not nearly as repugnant of a legal question as the State of Georgia would have us believe, and the State�s argument that Baker v. Nelson 191 N.W.2d 185 (Minn.S.Ct.1971) and Singer v. Hara 522 P.2d 1187 (Wash.Ct.App1974) constitute a Constitutional prohibition of same-sex marriages represents a very inaccurate reading of the cases. Neither case begins to assert a Constitutional prohibition of same-sex marriage, and in addition to this, the Court has never heard nor held that the United States Constitution contains a prohibition of same-sex marriage. In light of this analysis, the Court finds that the Full Faith and Credit clause applies to all legal marriages conducted in the United States.

II

With the application of the Full Faith and Credit clause established, the Court turns to the issue of the National Defense of Marriage Act (hereafter referred to as DOMA).The State of Georgia argues that even should the Full Faith and Credit clause apply to marriages, DOMA enables the State of Georgia to refuse Full Faith and Credit to the Doe-Doe marriage. The Court agrees that the clear language and intent of DOMA is to serve as an exception to the Full Faith and Credit clause. The Court sees several Constitutional problems with national legislation intended to such an effect.

The Full Faith and Credit clause of the United States Constitution states that Congress "may...prescribe the Manner in which such Acts, Records, and Proceedings shall be proved and the effect thereof." As enunciated by the Court in Mississippi University for Women v. Hogan 458 U.S. 718 (1982) Constitutional enforcement and enactment authority given to Congress is not intended to "restrict, abort, or dilute" Id. the original intent of the implicated provision of the Constitution. It is extremely clear to this Court that the intent of Section 2 of DOMA is exactly that, to "dilute" the original intent of the Full Faith and Credit clause. The language in the Full Faith and Credit clause authorizes Congress to "prescribe the Manner..." This language clearly bears a similar purpose to Section 5 of the Fourteenth Amendment, the provision at question in Hogan. In light of the Court�s ruling in Hogan, Section 2 of DOMA therefore cannot be held as Constitutional.

In addition to the original intent of the Full Faith and Credit clause, Section 3 of DOMA creates a federal "Definition of Marriage" as meaning "only a legal union between one man and one woman as husband and wife..." The Zablocki "critical examination" test would clearly apply to the DOMA definition. The Court can find no reasoning, nor has the State provided any such reasoning, to justify such an unprecedented federal definition in the area of family law. In light of the fact that this definition "significantly interferes with the exercise of that right [to marry]," the federal "Definition of Marriage" contained in Section 3 of DOMA is unconstitutional.

DOMA is clearly the type of regulation which the Court had attempted to invalidate with its ruling in the past term of Romer v. Evans 116 S.Ct. 1620 (1996). Under DOMA, John and James Doe have been denied by the federal government "the right to seek specific protection from the law" Id. in the State of Georgia. "[T]he [statute] seems inexplicable by anything but animus toward the class it affects," Id. and must therefore be held unconstitutional under the equal protection component of the Due Process clause of the Fifth Amendment.

III

The question remains whether the Georgia Defense of Marriage Act still, without the protections of DOMA, constitutes a "strong public policy" against recognizing legal marriages performed in other states. Although the State of Georgia argued that a choice of laws question is at hand and that the Georgia DOMA constitutes a greater interest than that of Hawaii and John and James Doe, the Court today disagrees. Neither the Georgia DOMA, nor any other law in the state of Georgia, recognize a "strong public policy" in opposition to the recognition of the legal marriages, same sex or otherwise, of any other state. The Georgia DOMA only relates to those Georgia same sex marriages "recognized for the purpose of gaining the legal status afforded to married couples at law." It does not relate to those marriages that have already gained "the legal status afforded to those married couples at law" out of state, and that need only be recognized by the State of Georgia for the legal status they already hold. The Full Faith and Credit clause compels the State of Georgia to grant this "Credit," or recognition, to John and James Doe and their legal marriage gained in Hawaii.

The Georgia Supreme Court�s judgement on the constitutionality of the National Defense of Marriage is hereby VACATED and REVERSED and the issue of custody is REMANDED to the State Supreme Court of Georgia for further proceedings in light of this ruling.

It is so ordered.

Written by Christopher R. Geidner