" (Smith, 2004; p.5) Smith relates that a federal bankruptcy court in the Western District of Washington found DOMA to be constitutional and that no constitutional rights exists for the individual to marry someone of the same sex and as well that DOMA does not violate the Fourth, Fifth or Tenth amendments, not the principles of comity. (in re Lee Kandu and Ann C. Kandu, No. 03-51312 - Western District of Washington, Aug 17, 2004; as cited in Smith, 2004; p.5)
There are potential constitutional challenges to DOMA, which exist, and it is argued by some that "DOMA is an unconstitutional exercise of Congress' authority under the full faith and credit clause of the U.S. Constitution." (Smith, 2004; p.5) Article IV, section 1 of the Constitution, the Full Faith and Credit Clause states: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; and the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." (as cited in Smith, 2004; p.5) According to Smith (2004), in the CRS Report to Congress: "Conversely, some argue that DOMA does nothing more than simply restate the power granted to the States by the full faith and credit clause. While there is no judicial precedent on this issue, it would appear that Congress' general authority to "prescribe...the effect" of public acts arguably gives it discretion to define the "effect" so that a particular public act is not due full faith and credit. It would appear that the plain reading of the clause would encompass both expansion and contraction." (p. 7) Smith writes that constitutional constraints on federal legislation exist and most notable in its relevance is the equal protection clause and the effect "of the Supreme Court's decision in Romer v. Evans which resulted the referendum-adoption provision of the Colorado Constitution being struck down under the equal protection clause which "repealed local ordinances that provided civil=rights protections for gay persons and which prohibited all governmental action design to protection homosexuals from discrimination." (Smith, 2004 p. 6)
In this particular case, it was held by the Court that: "...under the equal protection clauses, legislation adverse to homosexuals was to be scrutinized under a 'rational basis' standard of review. This classification failed to pass even this deferential standard of review, because it imposed a special disability on homosexuals not visited on any other class or people and it could not be justified by any of the arguments made by the State. The State argued that its purpose for the amendment was two-fold: (1) to respect the freedom of association rights of other citizens, such as landlords and employers who objected to homosexuality; and (2) to serve the State's interest in conserving resources to fight discrimination against other protected groups." (Smith, 2004; p. 6)
Smith (2004) sates that the Due Process Clause of the Fourteenth Amendment is another "possibly applicable constitutional restraint." (p.6) Additionally, is the effect of the decision of the Supreme Court in Lawrence v. Texas "which struck down under the due process clause a state statute criminalizing certain private sexual acts between homosexuals." (2004; p. 6) the Fourteenth Amendment's due process privacy guarantee was found by the Supreme Court to extend to protect consensual sex between adult homosexuals. Smith states that the general rule regarding validation for marriage is the law existing in the state of the marriage. A marriage that complies with the state in which it was contracted will generally be held to be valid in other states. This is only an exception in cases where "...another State's law violates '...some fundamental principles of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal." (Smith, 2004 p. 7)
II. THEORETICAL and PHILOSOPHICAL BASIS for POSITION AGAINST the work of Somerville (2003) entitled: "A Case Against 'Same-Sex Marriages" submitted in a brief to the Standing Committee on Justice and Human Rights 12 April 2003 states: "Marriage is, and has been for millennia, the institution that forms and upholds for society, the cultural and social values and symbols related to procreation. That is, establishes the values that govern the transmission of human life to the next generation and the nurturing of that life in the basic societal unit, the family. Through marriage our society marks out the relationship of two people who will together...
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