The Meaning of "General Laws": The Extent of Congress's Power under the Full Faith and Credit Clause and the Constitutionality of the Defense of Marriage Act

Abstract

t A.B. 1992, Duke University; J.D. Candidate 1998, University of Pennsylvania. I would like to thank Professor Seth Kreimer of the University of Pennsylvania for providing me with the idea for this Comment and for his generous assistance. I have also benefited from conversations with William Eskridge, Jr., Professor of Law at Georgetown University Law Center, and Andrew Chirls, Partner at Wolf, Block, Schorr, & Solis-Cohen, in Philadelphia. Lastly, I would like to thank the members of the Law Review for their unpaid and largely unrewarded efforts. Any errors remaining, however. should be attributed to them anyway. Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 28 U.S.C.A. ? 1738C (West Supp. 1997) and 1 U.S.C.A. ? 7 (West 1997)). 2 852 P.2d 44 (Haw. 1993). The plaintiffs, three homosexual couples, challenged their denial of marriage licenses on several grounds. See id. at 48-50. The court, holding that fundamental rights under the Hawaii Constitution are coextensive with fundamental rights under the Constitution of the United States, first held that couples do not possess a fundamental right to same-sex marriage, based on privacy or other grounds. See id. at 57. The court, however, did find that the state statute granting marriage licenses only to opposite-sex couples constituted sex-based discrimination, see id. at 60, thus implicating the equal protection guarantees of the Hawaii Constitution, as modified by an equal rights amendment, see id. at 63-67. The court went on to conclude that, for purposes of equal protection analysis under the Hawaii Constitution, sex was a category subject to strict scrutiny. See id. at 67. The court thus declined to decide whether sexual orientation was a suspect category, finding that the sexual orientation of the plaintiffs was irrelevant to their decision. See id. at 58 n.17. The Hawaii Supreme Court remanded the case to the lower court to determine whether the state could prove that the statute denying marriage licenses to same-sex couples furthered a compelling state interest and was narrowly drawn to avoid unnecessary constitutional deprivations. See id. at 68. On remand, the Hawaii Circuit Court held that the state had failed to meet its burden. See Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235, at *21 (Haw. Cir. Ct. Dec. 3, 1996). To prevent potential chaos, the court issued an order suspending the