Steve Sanders in the National Law Journal:
Imagine this scenario. Sandra and Ellen marry in Massachusetts. A few months later, their car is hit by a truck on a Massachusetts highway. Sandra is killed.
Ellen sues the driver's employer, a freight company headquartered in Indianapolis, for wrongful death. After trial, the Massachusetts court awards a money judgment. But to collect against the defendant's assets, Ellen must carry the judgment to Indiana and ask a court there to domesticate it.
Like 39 other states, Indiana outlaws same-sex marriage. The defendant invokes the federal Defense of Marriage Act (DOMA), which says that no state is "required to give effect to any public act, record, or judicial proceeding" respecting another state's same-sex marriage "or a right or claim arising from such relationship." Based on DOMA's plain language, the Indiana court turns Ellen away. The tort judgment she received in her home state becomes worthless.
It's an interesting hypothetical, and one more likely to occur than the one I thought up here. Sanders believes that, under the facts in the hypothetical, DOMA would be held to violate the Full Faith and Credit clause and to flunk the quasi-rational basis equal protection test applied in Romer v. Evans. I know very little about Full Faith and Credit jurisprudence - it's a topic usually skipped in most Con Law casebooks.
Romer seems to me to be a profitable line of attack. As Justice Kennedy wrote for the Court there: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." As Sanders points out, the hypothetical takes the issue out of the realm of marriage policy, in which states have broad latitude. If Romer's reasoning were applied to DOMA in the context of enforcing a legal judgment, then the state asserting DOMA as a defense would have to come up with something more than "we just don't like them gays." There would have to be a showing of why a policy of refusing to enforce a money judgment for a gay or lesbian plaintiff "bears a rational relation to some independent and legitimate legislative end", as the Romer court said. Of course, all of this depends on the composition of the Court at the time of any appeal.