legal comments

gay marriage should enjoy full faith and credit
A nice FindLaw guest commentary from law student Christopher Geidner--on the Defense of Marriage Act, Lawrence, and the stirrings of and amendment to Constitution saying "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
Apart from some discussion of the above, Geidner's point is that the Defense of Marriage Act is an unconstitutional violation of the full faith and credit clause. Here are some key passages:

U.S. Rep. Barr recently explained in an Op-Ed in The Washington Post why he would never support such an amendment - despite the fact that he still "do[es] not support same-sex marriages." He explained that in his view, "[m]arriage is a quintessential state issue. The Defense of Marriage Act goes as far as is necessary in codifying the federal legal status and parameters of marriage."
...
In all likelihood, the Federal Marriage Amendment - a piece of political grandstanding if there ever was one, will fail. If so, what is likely to occur? Obviously, gay marriage won't be instantly legal. Rather, the legal fights will still ensue.

Any day, the Massachusetts Supreme Judicial Court might - or might not - declare that the state is required to end marriage discrimination against lesbian and gay couples. If so, some Massachusetts gay married couple will doubtless someday want their marriage enforced in another state - and DOMA will be put to the test.

Hopefully, it will fail that test, and the courts will find, as they should, that DOMA violates the Full Faith and Credit clause insofar as it purports to authorize states to ignore other states' marriages.
Meanwhile, those states that have passed their own marriage definitions excluding same-sex couples may find those definitions challenged in court, and the other half of DOMA - the part that defines federal marriage to exclude same-sex couples - may face a similar challenge. The challenge would derive from Lawrence's recognition that every American, regardless of sexual orientation, has the right to "overt expression in intimate conduct with another person."

When this challenge is raised, Barr's pro-states' rights position - so convenient in the fight against the Federal Marriage Amendment - may look a lot less attractive to the ACLU and others who support gay rights. After all, if states have the right - as Barr claims - not to have their choice trampled by the Federal Marriage Amendment, Barr and others may insist that they also have the right to define marriage to their own liking. And if they have that right, they can define it to exclude same-sex couples.

Moore U.S. history confusions
Marci Hamilton throws in her historical cents on this one. She argues against the argument that supports display of the Ten Commandments because of their being the "sole source" of our law.

As a Christian, an American, and a scholar, I found the whole thing embarrassing. First, it was such a transparent attempt by Christians to regain power over a country that has become the most pluralistic religious culture in world history.

Second, I was appalled that Americans - including television personalities who have a responsibility to their audience to do their homework - could be so uninformed about the history of our legal system, and its many and diverse sources.

Third, we proved once more to the world community that as a nation, we have the most abysmal knowledge of history. Worse, this laughable claim about legal history was repeated over and over as plain truth.

Strong words. Her argument:
The first four commandments

1.Thou shalt have no other gods before me.

2.Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth . . . .

3.Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain.

4.Remember the sabbath day, to keep it holy. Six days shalt thou labour, and do all they work: But the seventh day is the Sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor they maidservant, nor they cattle, nor thy stranger that is within thy gates.

could never be made law. Barnett makes this clear with the line: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . ."
Otherwise, Hamilton gives a solid historical argument. Read it and respond with grievances. Here's a slice:

Thomas Jefferson specifically railed against attempts to claim that the common law incorporated the Ten Commandments when he criticized judges for "lay[ing] the yoke of their own opinions on the necks of others by declaring that [the Ten Commandments] make a part of the law of the land." John Adams also questioned the influence of the Commandments and the Sermon on the Mount on the legal system.

At the Constitutional Convention, the Framers looked to the examples of antiquity--the Greeks and the Romans - and not to the Ten Commandments. They were a pragmatic lot, and they were not interested in being bound by their religious heritage (despite today's claims to the contrary). Rather, they were searching for virtually any idea--from virtually any source--that would work to create a better government than the failure produced by the Articles of Confederation.