You cannot have marriage without law. Again, the real issue of same-sex marriage is legal recognition. Marriage is a right defined by state law. Texas, for example, recently passed a constitutional amendment defining marriage, which provides in pertinent part: “Sec. 32. (a) Marriage in this state shall consist only of the union of one man and one woman. (b ) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.” The recent constitutional challenges over recognition of same-sex marriage have been under the “Full Faith and Credit Clause” (Const., Art. IV, Sec. 1); e.g., a gay couple married in Massachusetts moves to a state like Texas. Many provisions of federal law incorporate state marriage laws for determining individual rights and benefits, and the issue raised is whether one state’s law defining marriage must be given extraterritorial effect. In this regard, Congress has enacted the Defense of Marriage Act (DOMA), which is a federal law that has to do with the applicability of the "Full Faith and Credit Clause" of the Constitution to state marriage laws. The act provides: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." 28 U.S.C. § 1738c. Thus, in order for laws providing for same-sex marriage to be given extraterritorial effect, DOMA would have to be repealed by the Congress or declared unconstitutional by the Supreme Court. See, Andrew Koppelman, Dumb and DOMA: Why the Defense of Marriage Act is Unconstitutional, 83 Iowa L. Rev. 1 (1997); Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965 (1997); Mark Strasser, Legally Wed: Same-Sex Marriage and the Constitution (Cornell Univ. Press 1997). Thus far, challenges to the validity of DOMA have not been successful. See, e.g. ; In re Kandu, 315 B.R. 123 (Bankr. W.D.Wash 2004). The Administration, however, has recently issued a policy statement that the government will not defend challenges to DOMA based upon constitutional standards.
