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Here's some stuff from the article I mentioned earlier (fair use is a wonderful thing).
First, on DOMA:
The plain language of the Full Faith and Credit Clause might suggest that Congress can regulate only incidental matters relating to the manner of how an Act, Record, or Proceeding from a sister state may be introduced in court. This authority over purely procedural aspects would, for example, permit Congress to require that acts from sister states be authenticated by the official state seal, or that records and judicial proceedings from sister states be accompanied by the seal of the court, the attestation of the clerk, and the certificate of a judge. Acts, records, and judicial proceedings presented in this manner receive effect, while acts, records and proceedings not so authenticated do not receive effect. This is the implication of the words, "Congress may... prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." If this is so, it puts a cruel twist on the language to say that Congress's mandate to prescribe "the Manner in which ... Acts, Records and Proceedings shall be proved, and the Effect thereof" contains within it the power to prescribe that certain unpopular legal outcomes shall be entitled to no effect. The language of the Full Faith and Credit Clause itself does not lend Congress the affirmative power to deny categorically the effect of certain substantive laws. Proponents of DOMA must do more than merely point to the plain language of the Clause to support their claim of congressional authority.
This reading of the Clause is substantiated by comparing the placement and language of the Full Faith and Credit Clause to that of other constitutional grants of power to Congress. Congress's most essential powers are delineated in Article I, Section 8 - so finely as to include such details as the regulation of post offices and the punishment of piracy. The power to draft choice of law rules does not appear therein. Elsewhere, grants of congressional power, particularly power to take away part of what the Constitution has given, are clearly defined. For example, concerning congressional elections, the Framers laid down a general rule and then granted Congress the power to vary the rule: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at an time by Law make or alter such Regulations..."
The Framers understood that to state a constitutional mandate and then allow Congress free reign to undo it was something that should be handled delicately; in such cases they communicated with the clearest of terms. Preceding the Full Faith and Credit Clause in the Constitution there is another general rule coupled with an explicit congressional ability to carve out exceptions: "The supreme Court shall have appellate Jurisdiction... with such Exceptions, and under such Regulations as the Congress shall make." In contrast, a dozen lines later, the Constitution mandates that "Full Faith and Credit shall be given" and gives no hint that Congress has any right to "make or alter" rules, or "create exceptions." When the Framers intended to award Congress broad power, particularly when such power was paired with an accompanying textual mandate, they used different language than that which appears in the Full Faith and Credit Clause. The Full Faith and Credit Clause does not constitute - as a matter of plain meaning and structural analysis - a delegation to Congress of the power to abrogate the operation of the Clause in particular types of caess.
Contemporaneous congressional action is consistent with the theory that Congress was granted minimal legislative power. Wasting little time, the First Congress chose to legislate in the area on May 26, 1790. However, this legislation basically restated the Full Faith and Credit Clause and then did no more than fill in the details of how acts, records and proceedings could be authenticated. In 1804, Congress created similar provisions specifically for nonjudicial records. Aside from these minor excursions relating only to the general manner of authenticating out-of-state matters, and not to the effect of particular acts, records or proceedings, Congress let the Full Faith and Credit Clause lie dormant for nearly two centuries. The plain meaning of the text and the history of congressional action suggest a limited scope of congressional power.
Notwithstanding some evidentiary ambiguity, careful analysis of the constitutional debates indicates that the Framers intended to limit Congress's powers under the Full Faith and Credit Clause. It is true that one part of the constitutional debates suggests that Congress was delegated broad authority by the grant to regulate the "manner" and "effect" of acts, records and proceedings. An initial version of the Full Faith and Credit Clause referred to the power to "prescribe the manner in which such acts, Recotds, and proceedings shall be proved, and the effect which Judgements obtained in one state, shall have in another. This owuld have constituted a clear grant to Congress to prescribe the effects of judgments - but not acts and records. Therefore Gouvernor Morris proposed an amendment which would shorten the phrase to "the effect thereof" and is was understood that the word "thereof" would reference "Acts, records and proceedings" This history identifies the referent of the word "thereof" and suggests that the Effects Clause was not merely meant to refer to the effect of different manners of proof. Scholars have relied on precisely this Morris Amendment to argue for a broad scope of congressional power.
However, it does not necessarily follow that Congress was given unlimited power to regulate choice of law or the interstate effect of state judgments. After incorporating Gouvernor Morris's amendment, the complete text of the Full Faith and Credit Clause read as follows: "Full faith and credit ought to be given in each State to the public acts, records, and judicial proceedings of every other state, and the legislature shall by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." This version of the Clause contained only the precatory words that full faith and credit "ought to be given," and required that Congress legislate the effect of acts, records and proceedings (acts, records, and proceedings all being captured by the word "thereof"). If Congress has never passed any legislation, full faith and credit would not have been mandated by this rendition of the Constitution. Had Morris's language remained, Congress would, of necessity, have retained the entire power to legislate full faith and credit law, or else the Full Faith and Credit Clause would have been useless.
But then Madison proposed the next, and final, amendment. The Clause was changed to its modern form: "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state; and the legislature may by general laws prescribe the manenr in which such acts, records and proceedings shall be proved, and the effect thereof." This version of the Clause contains a constitutional mandate of full faith and credit which preceds any congressional action. It is contemplated that Congress may - or may not - enact legislation. Whether it does or not, the textual requirement, stated in affirmative terms, remains. The constitutional text has a lifeblood of its own.
The vitality of the first stentence, demanding that every state recognize the acts, records and proceedings of every other state, was made clear by a quirk of history. In its 1790 legislation, Congress left out the word "Acts." The Supreme Court decided that this clause of the Constitution was self-executing with respect to acts - clearly illustrating that the first sentence of the Full Faith and Credit Clause has a "bite" of its own. As stated in Thomas v. Washington Gas Light Co, "it is quite clear that Congress's power in this area is not exclusive, for this Court has given effect to the Clause beyond that required by implementing legislation."
What happens, then, if a congressional statute directly conflicts with the text's substantive requirement of full faith and credit? Can Congress pass a law saying "Full Faith and Credit shall be given ... to ... every other State except Missouri?" Can Congress enact a law stating that "Full Faith and Credit shall never be given to the public acts, records, and judicial proceedings of other states"? The answer is obvious: By the terms of Marbury v. Madison, any substantive conflict must be resolved in favor of the Constitution. The Framers did not engage in "prescribing limits, and declaring that those limits may be passed at pleasure."
The Madison Amendment set such a limit. It shifted words with fine-tuned precision, insisting that full faith and credit "shall" - rather than "ought to" - be given to each state's works. The grant of legislative authority was paired with a specific textual constraint. Prior to the Madison Amendment, the Clause operated as a blank check - it amounted to the directive: "Congress shall enact legislation and it ought to encourage faith and credit." It is under this version of the Clause, and this version only, that DOMA might make sense. But this is not the version that was ultimately incorporated into the Constitution. The Full Faith and Credit Clause as it was ratified amounts to something more than "Full Faith and Credit shall be given whenever Congress sees fit."
Next, on the Supremacy Clause and State Family Law:
When federal law displaces state law, as DOMA does, courts evaluate the conflict with reference to the Supremacy Clause and preemtion doctrine. Normally when federal law, by its terms, conflicts with state law, the Supremacy Clause provides for the preemption state law. However, this preemption doctrine is sometimes modified to suit different situations, for when federal law abuts an area of particular state concern, federal law may not prevail. When family law is involved, the standard has been particularly charitable to the states and the federal government has had to satisfy an unusually rigorous test before its law will prevail. As stated by the Fifth Circuit, "Federal respect for state domestic relations law has a long and venerable history. When courts face a potential conflict between state domestic relations law and federal law, the strong presumption is that the state law should be given precedence... the law of family relations has been a sacrosanct enclave, carefully protected against federal intrusion."
The Supreme Court has considered on a handful of occasions whether federal or state law will control when their terms conflict and matters of domestic relations are at stake. Not every tension between a federal statute and state family law should be resolved in favor of the federal statute. Applying state family law must pose a high degree of harm to the organic purpose of the federal statute before state family law will be overridden. Because of this unique manner in which preemption doctrine is applied to domestic relations, section 3 of DOMA is unlikely to receive actual legal effect.
In De Sylva v. Ballentine, a 1955 case, the Court declared that while "the scope of a federal right is, of course, a federal question... that does not mean that its content is not to be determined by state, rather than federal law. De Sylva involved the Federal Copyright Act, which granted to "the children" of a dead author the right to renew a copyright for a 28-year period. The question was whether an illegitimate child could take advantage of this right. The Court held that state law should decide whether an illegtimate child falls within the definition of "child" for the purposes of the federal statute. The Court reasons that the doctrine that state law should flesh out the meaning of a federal statute "is especially true where a statute "is especially true where a statute deals with a familial relationship. This question of which children meet the federal definition of "child" parallels the question of whether gay or lesbian spouses meet the federal definition of "spouse." In both cases, the determination of family status is the flashpoint of conflict.
The Court reached a similar conclusion to DeSylva in United States v. Yazell. In this case, the Federal Small Business Administration attempted to collect a loan which had been given to Yazell and his wife after their small business had been ruined in a flood. The wife contended that she could not be held responsible for the defaulted loan because under the coverture law of her home state, she was not able to bind herself by contract. The Court allowed state law to dictate the result, and held that the government could not collect the loan from her. The Court acknowledged that most Supremacy Clause cases are resolved in favor of federal law, but stated that "none of these cases overrode state law in the peculiarly state province of family arrangements."
De Sylva and Yazell suggest that DOMA cannot override state law when domestic relations are involved. However, De Sylva and Yazell are distinguishable from DOMA in one important respect: The federal statutes before the Court did not explicitly define their terms. The law in De Sylva did not evince on its fact any clear intent concerning the status of illegitimate children, and the law in Yazell did not specifically comment on the law of coverture. In contrast, DOMA deliberately and explicitly defines the words "marriage" and "spouse," in the very anticipation of conflict with state law. Yazell reserved the question of what would happen in the event of such a clear congressional intent: "We do not here consider the question of the constitutional power of the Congress to override state law in these circumstances by direct legislation... We decide only that this Court, in the absence of specific congressional action, should not decree in this situation that implementation of federal interests requires overriding the particular state rule involved here."
But is a clear congressional intent all that is required to supersede a state policy? If clarity alone is sufficient, Congress would have free license to trample in even an area of the utmost state concern merely by speaking plainly. The Supreme Court has suggested that when Congress is treading in the area of family law it must be more than just clear. In Yazell, the Court decreed that state family law would be superseded only if "clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied." Since Yazell, the Supreme Court has used a two-part analysis, inquiring first whether Congress has "positively required by direct enactment" a result that differs from that obtained under state law, and second whether applying state law would do "major damage" to "clear and substantial" federal interests. The "major damage" requirement is not present in traditional preemption cases, but is unique to caess involving domestic relations. This unusually strict condition for preemtion has been reiterated in each of the subsequent Supreme Court cases balancing the Supremacy Clause with the traditional state right to govern domestic relations.
That's not nearly all, but my hand is actually starting to hurt from typing all that.
Basically, it doesn't matter that it's a federal entitlement that we're talking about; it still infringes on the state's right to decide matters of domestic relations.
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