Senator John Kerry, the Democratic presidential nominee, may be coming in for a drubbing from Eugene Volokh.
To deserve condemnation, they need to have argued that DOMA is unconstitutional and have also argued that the FMA is unnecessary because of DOMA.Kerry changed his views on the Defense of Marriage Act between his vote against it in 1996 and the February Democratic debates.
Kerry also asserted that DOMA was unconstitutional and that the U.S. Constitutionís full faith and credit clause requires states to recognize the marriage licenses of another state -- a position Kerry has since reversed.
"The authors of the bill mistakenly claim that Congress has the authority to allow one state to ignore a legally recognized marriage in another," he wrote in 1996. "But the U.S. Constitution is unequivocal on this point: 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.'From the Boston Globe:
"Imagine the confusion if we didnít have such a clause: A child-custody decision in California could be ignored by Illinois; a divorce concluded in Nevada could be rejected in New York. DOMA does violence to the spirit and letter of the Constitution by allowing the states to divide."
In a February Democratic presidential debate, Kerry distanced himself from his 1996 position on the Defense of Marriage Act.
"I think, under the full faith and credit [clause], that I was incorrect in that statement," he said at the debate, which was held in California. "I think, in fact, that no state has to recognize something that is against their public policy."
Bush's main Democratic rivals, Senators John Edwards of North Carolina and John F. Kerry of Massachusetts, both blasted Bush's call for a constitutional amendment as divisive and unnecessary, especially given that a federal law passed in 1996 already defines marriage as a union between a man and a woman. [...]In fairness to Kerry, he says that he was mistaken before about the constitutionality of DOMA, and therefore is not simultaneously claiming DOMA to be unconstitutional while opposing the Federal Marriage Amendment as unnecessary.
Kerry said: "While I believe marriage is between a man and a woman, for 200 years this has been a state issue. I oppose this election-year effort to amend the Constitution in an area that each state can adequately address, and I will vote against such an amendment if it comes to the Senate floor."