L’uso distorto della Full faith and Credit clause federale nell’adozione del Defence of Marriage Act del 1996: da clausola unificante a strumento di ghettizzazione

In United States v. Windsor of 2013, the U.S. Supreme Court has declared the constitutional illegitimacy of the first part of DOMA where the Congress put a definition of the institution of marriage for the federal law, as exclusively heterosexual union. This act has been adopted in order to exclude couples eventually merged into a same-sex marriage from the possible advantages (tax, health care, etc..), which stem from federal legislation. In the same decision, the Court also ruled that the distinction on the basis of sexual orientation by rules of ordinary rank is eligible to trigger the use by the court of the strict scrutiny. The Supreme Court has not spoken openly about the first part of DOMA which provides that Member States of the Federation are not required to recognize same-sex marriages celebrated in other states; this regulatory provision, however, following the decision of Windsor, presents important profiles of unconstitutionality too. The first part of the DOMA 1996 was adopted on the basis of the Full Faith and Credit Clause which is provided for in the Article IV Section I of the U.S. Federal Constitution and which states: “In every State shall be allocated the full faith and full credit to the acts, access to public documents and the judicial proceedings of other states; And the Congress may by general acts prescribe the manner in which the validity of such acts, records and proceedings must be determined and the effects of validity itself. “ In Milwaukee County v. M.E. White Co., 1935, the Supreme Court put in evidence the “unifying” purpose of this clause The paper aims to reconstruct the Congress misuse of this clause which was adopted to ensure the validity of acts and judgments throughout the federation and was used instead by the Congress as constitutional legitimation to adopt a legislation to ensure Member States from the obligation to recognize same-sex marriages celebrated in other states.