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Defense of Marriage Act
US-GreatSeal-Obverse.svg
Acronym / colloquial name DOMA
Enacted by the 104th United States Congress
Citations
Public Law 104-199
Stat. 110 Stat. 2419 (1996)
Codification
Legislative history
Major amendments

Defense of Marriage Act is the short title of a federal law of the United States passed on September 21, 1996 as Public Law No. 104-199, 110 Stat. 2419. Its provisions are codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. The law, also known as DOMA, has two effects:

  1. No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
  2. The federal government defines marriage as a legal union exclusively between one man and one woman.

The bill was passed by Congress by a vote of 85-14 in the Senate[1] and a vote of 342-67 in the House of Representatives,[2] and was signed into law by President Bill Clinton on September 21, 1996.

At the time of passage, it was expected that Hawaii (and possibly other states) would soon legalize same-sex marriage, whether by legislation or judicial interpretation of either the state or federal constitution. Opponents of such recognition feared (and many proponents hoped) that the other states would then be required to recognize such marriages under the Full Faith and Credit Clause of the United States Constitution.

Contents

Text

The following excerpts are the main provisions of the Act:

Powers reserved to the states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Definition of 'marriage' and 'spouse':

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.[3]

Legal history

In the 1993 case Baehr v. Lewin (name later changed to Baehr v. Miike[4]), the Hawaii State Supreme Court ruled that the state must show a compelling interest in prohibiting same-sex marriage. This prompted concern among opponents of same-sex marriage that the state might legalize it, and that eventually other states would recognize same-sex marriages performed in Hawaii. The Defense of Marriage Act is designed to prevent states from being required to recognize the marriage of same-sex couples in other states.

The Defense of Marriage Act was authored by then Georgia Representative Bob Barr, then a Republican, and signed into law by President Bill Clinton, a Democrat, on September 21, 1996, after moving through a legislative fast track and overwhelming approval in both houses of the Republican-controlled U.S. Congress. Its Congressional sponsors stated, "[T]he bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex."[5] Barr has since apologized for his sponsorship of the DOMA and thinks it should be repealed,[6] saying it violates the principles of federalism.[7]

The legislative history of the bill asserts authority to enact the law under Article IV Sec. 1, which grants Congress power to determine "the effect" of such full faith and credit. Proponents made clear their purpose to normalize heterosexual marriage on a federal level, while still allowing each state to decide individually whether to recognize same-sex unions from other states. Opponents have questioned whether the power asserted extends so far as to permit non-recognition altogether, have argued that the law is unconstitutionally vague by leaving out essential details, and assert a constitutional right to same-sex marriage.

Although Clinton signed the Defense of Marriage Act into law during his re-election campaign in 1996 and opposed same-sex marriage, he did not mention the law (or the controversy surrounding it) in his 2004 memoir, My Life.[8]

In a June 1996 interview in the gay and lesbian magazine The Advocate, Clinton said: "I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered."[9] Over time, Clinton's personal views on same-sex marriage have shifted. During an address to the Campus Progress National Conference, delivered on July 8, 2009, in Washington D.C., Clinton reportedly said: "I personally support people doing what they want to do. I think it's wrong for someone to stop someone else from doing that [gay marriage]."[10] Clinton, however, added that he doesn't believe that it is a "federal question", stating, "I think all these states that do it should do it."[11]

President Barack Obama's political platform included full repeal of DOMA.[12][13] However, on June 12, 2009 the Department of Justice issued a brief defending the constitutionality of DOMA in the case of Smelt v. United States of America, suggesting a sharp reversal by the Obama administration.[14] This measure drew much anger from organizations in favor of same-sex marriage such as the Human Rights Campaign and the Empowering Spirits Foundation, especially for the brief's specific arguments.[15][16] On June 15, 2009, Human Rights Campaign President Joe Solmonese sent a four page letter to President Barack Obama in response to the Department of Justice brief, in which he laid out the case of LGBT people as equal human beings and urged, "We call on you to put your principles into action and send legislation repealing DOMA to Congress.[17]

On September 15, 2009, representatives Jerry Nadler of New York, Tammy Baldwin of Wisconsin, and Jared Polis of Colorado introduced the Respect for Marriage Act, which would repeal DOMA. The bill had 91 original cosponsors.[18]

Constitutionality

The constitutional issues most relevant to DOMA are the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which is concerned with the "definition of 'marriage' and 'spouse'" section of DOMA and the Full Faith and Credit Clause, which is primarily concerned with the "powers reserved to the states" section of DOMA.

A fundamental right to marriage — at least "marriage" defined as one man and one woman — overriding the provisions of state law, was found in Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley. The Full Faith and Credit Clause of the United States Constitution obligates states to give "Full Faith and Credit ... to the public Acts, Records, and judicial Proceedings of every other State." The Effects Clause (Art IV, § 1) grants Congress the authority to "prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." Whether DOMA is an appropriate exercise of this power is disputed.

Critics of DOMA argue that the law is unconstitutional on several grounds:

Federal Courts that have heard direct challenges to DOMA have disagreed with the critics on these points (See: In re Kandu[20], 315 B.R. 123, 138 (Bankr. D. Wash. 2004) and Wilson v Ake 18 FLW Fed D 175 (2005)).

In 2009, 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt declared DOMA unconstitutional in a case where the federal government refused to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson.[21] As an employee of the federal judiciary, Levenson is prohibited from suing in federal court. Hence this case was handled by Reinhardt in his capacity as a dispute resolution official.

On March 3, 2009, GLAD filed a Federal Court challenge, Gill v. OPM based on the Equal Protection Clause and the federal government's heretofore consistent deference to each state's definition of marriage. It questions only the DOMA provision that the federal government does not have to recognize same-sex marriages.[22][23]

Several challenges[citation needed] to the law's constitutionality have been appealed to the United States Supreme Court, but so far the Court has declined to review any such case. Many states have still not decided whether to recognize other states' same-sex marriages,[citation needed] as only Iowa,[24] California, Connecticut, Vermont, New Hampshire, Massachusetts, and Washington, DC have issued licenses for same-sex marriages.

On March 9, 2009, Arthur Smelt and Christopher Hammer filed a lawsuit, Smelt v. United States of America in Orange County, California, seeking to reverse DOMA and Proposition 8 as unconstitutional.[25] On June 12, 2009 the Department of Justice issued a brief defending the constitutionality of DOMA.[26]

On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Commonwealth v. United States Department of Health and Human Services, challenging the constitutionality of DOMA. The suit claims that Congress "overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people."[27]

DOMA and state legislation

Since the passage of DOMA, there has been an increased focus on the variety among states with regard to the legal status of same-sex marriage. Some states have proactively, by legislation or referendum, determined that they will not recognize same-sex marriages.[28]

Opponents of same-sex marriage assert that the issue should be decided by popular vote or through the legislative process, rather than by the judiciary.

Gay rights advocates, conversely, feel that not even legislative action or a popular majority can deny a minority a fundamental right. Since the United States system of checks and balances leaves it to the judiciary branch to protect the fundamental rights of minority groups against the tyranny of the majority, advocates believe that the judiciary should strike down gender-restrictive marriage laws in the same way it struck down racially-restrictive marriage laws.

Currently Connecticut,[29] Iowa, Massachusetts, New Hampshire and Vermont are the only states that allow marriages between persons of the same sex, although they will also be permitted in Washington, DC barring Congressional action by early March 2010. California legalized same-sex marriage on June 16, 2008,[30] but on November 8, 2008, voters passed a proposition to restrict marriage to members of the opposite sex.[31]

New York, Maryland, and Washington DC recognize such marriages from other jurisdictions. Other states may recognize such a marriage as a civil union or domestic partnership (Nevada, California,[32] and New Jersey).

Some states recognize civil unions to represent same-sex relationships, considering them equivalent to marriage. Other states (including Nevada) have domestic partnerships in place to grant same-sex relationships some of the benefits the state bestows on married couples. However, there are procedural differences such as differing age limitations (in many states, the legal age to marry is 16, while the legal age to enter into a domestic partnership is 18), residential requirements (married individuals are not required to live in the same residence with their spouse, while domestic partners are required to share a residence, although in states such as Nevada such co-residency may be part-time).[33]

A majority of the states, including those that have some benefits for same-sex relationships, have restricted recognition of marriage to unions of one man and one woman in state law, have some law defining marriage as such, or have an amendment to their state constitution to that effect. As of April 2009, 29 states have enacted constitutional amendments defining marriage as the union of a man and a woman, and another 13 states have statutory bans (this includes Maine, which has approved a same-sex marriage bill that was subject to referendum in the United States general elections, 2009. The referendum succeeded, keeping same-sex marriage illegal in the state).[28]

Repeal attempts

On September 15, 2009, Democratic Congressman Jerrold Nadler from New York introduced legislation called the Respect for Marriage Act to repeal DOMA. The bill has 91 original co-sponsors in the House of Representatives.[34] However, gay statesmen Barney Frank and John Berry do not support RFMA, stating that "the backbone is not there" in Congress. Frank and Berry suggest that it would be quicker to overturn DOMA through lawsuits such as Gill v. Office of Personnel Management filed by Gay & Lesbian Advocates & Defenders.[35][36]

See also

References

  1. ^ "On Passage of the Bill (H.R. 3396)". United States Senate. 1996-09-10. http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=2&vote=00280. Retrieved 2009-01-18. 
  2. ^ "Final vote results for roll call 316". United States House of Representatives. 1996-07-12. http://clerk.house.gov/evs/1996/roll316.xml. Retrieved 2009-01-18. 
  3. ^ "Defense of Marriage Act". United States Government Printing Office. 1996-09-21. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_laws&docid=f:publ199.104. Retrieved 2009-01-18. 
  4. ^ "State of Hawaii Report of the Commission on Sexual Orientation and the Law, Chapter 2 Footnotes". State of Hawaii. 1995. http://hawaii.gov/lrb/rpts95/sol/cpt2ftn.html. Retrieved 2009-01-18. 
  5. ^ "Defense Of Marriage Act" 5/96 H.R. 3396 Summary/Analysis
  6. ^ Richardson, Valerie (May 26, 2008). "Barr tops 9 others for Libertarian nod". Washington Times. http://www.washingtontimes.com/news/2008/may/26/barr-tops-9-others32for-libertarian-nod/print/. 
  7. ^ "U.S. Moves To Dismiss Gay Marriage Case". CBS News. Associated Press. June 12, 2009. http://www.cbsnews.com/stories/2009/06/12/national/main5084328.shtml. 
  8. ^ Washington Blade: "Clinton says gays overly critical of DADT; Memoir omits DOMA fight, Mixner, many out gay appointees," June 25, 2004, accessed February 12, 2010
  9. ^ Moss, J. Jennings. Bill Clinton interview, 1996. The Advocate. June 25, 1996. Archived by Wayback Machine.
  10. ^ Galloway, Jim (July 14, 2009). "Bill Clinton drops opposition to same-sex marriage". Atlanta Journal-Constitution. http://blogs.ajc.com/political-insider-jim-galloway/2009/07/14/bill-clinton-drops-opposition-to-same-sex-marriage/?cxntfid=blogs_political_insider_jim_galloway. 
  11. ^ Tracey, Michael (July 14, 2009). "Bill Clinton Backs Same-Sex Marriage". The Nation. http://www.thenation.com/doc/20090720/tracey. 
  12. ^ Barack Obama on LGBT Rights
  13. ^ Open Letter from Barack Obama Concerning LGBT Equality
  14. ^ "Obama Admin Moves To Dismiss Defense Of Marriage Act Challenge". Huffington Post. 2009-06-12. http://www.huffingtonpost.com/2009/06/12/obama-defends-antigay-def_n_214764.html. Retrieved 2009-06-12. 
  15. ^ "Gay Blogosphere Erupts Over Obama's DOMA Defense". On Top Magazine. 2009-06-12. http://www.ontopmag.com/article.aspx?id=4002&MediaType=1&Category=26. Retrieved 2009-06-12. 
  16. ^ "ESF Condemns Obama for Defending Defense of Marriage Act" (PDF). Empowering Spirits Foundation Press Release. 2008-06-12. http://www.empoweringspirits.org/PRDocServer/DOMA_Obama_Defense_061209.pdf. Retrieved 2009-06-12. 
  17. ^ Human Rights Campaign, Joe Solmonese Letter to Obama on DOMA, June, 15, 2009 "Open Letter to President Obama" (PDF). Human Rights Campaign. 2008-06-15. http://www.hrcbackstory.org/wp-content/uploads/2009/06/Solmonese-letter-to-Obama-re-DOMA-brief-June-15-2009.pdf. Retrieved 2009-09-07. 
  18. ^ Eleveld, Kerry (2009-09-15). "Respect for Marriage Act Debuts". The Advocate. http://www.advocate.com/Politics/Washington_D_C_/Respect_for_Marriage_Act_Debuts/. Retrieved 2009-09-15. 
  19. ^ "DOMA Complaint" (PDF). http://www.mass.gov/Cago/docs/press/2009_07_08_doma_complaint.pdf. Retrieved 2009-11-06. 
  20. ^ "Kandu Bankruptcy Decision" (PDF). http://www.domawatch.org/cases/9thcircuit/InreKanduBkrDecision.pdf. Retrieved 2009-11-06. 
  21. ^ "Federal judge rules denial of health coverage to same-sex spouse unconstitutional". Los Angeles Times. 2009-02-09. http://latimesblogs.latimes.com/lanow/2009/02/gay-marriage.html. Retrieved 2009-11-06. 
  22. ^ Goodnough, Abby; Zezima, Katie (2009-03-02). "Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples". The New York Times. http://www.nytimes.com/2009/03/03/us/03marriage.html. Retrieved 2009-11-06. 
  23. ^ ""DOMA" Means Federal Discrimination Against Married Same-Sex Couples". GLAD. http://www.glad.org/doma/lawsuit. 
  24. ^ Davey, Monica (2007-09-01). "Iowa Permits Same-Sex Marriage, for 4 Hours, Anyway". The New York Times. http://www.nytimes.com/2007/09/01/us/01iowa.html. 
  25. ^ "Smelt v. United States of America Notice of Removal". United States District Court - Southern Division. http://www.scribd.com/doc/15097245/Smelt-v-United-States-of-America-Notice-of-Removal. Retrieved 2009-11-06. 
  26. ^ "Obama Angers Gays With Marriage Law Defense". San Francisco Chronicle. 2009-06-12. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/06/12/MND5186EV8.DTL&tsp=1. Retrieved 2009-11-06. 
  27. ^ Finucane, Martin (2009-07-08). "Mass. challenges federal Defense of Marriage Act". Boston Globe. http://www.boston.com/news/local/breaking_news/2009/07/mass_to_challen.html. Retrieved 2009-11-06. 
  28. ^ a b Statewide Marriage Prohibitions
  29. ^ Judge Clears Way For Same-Sex Marriages
  30. ^ "California Supreme Court Denies Rehearing and Stay in Marriage Cases" (PDF). 2008-06-04. http://www.courtinfo.ca.gov/presscenter/newsreleases/NR31-08.PDF. Retrieved 2008-06-04. 
  31. ^ "Election Results: State Ballot Measures". 2008-11-07. http://vote.sos.ca.gov/Returns/props/59.htm. 
  32. ^ http://sacramento.bizjournals.com/sacramento/stories/2009/10/12/daily8.html
  33. ^ [1]
  34. ^ Nadler, Baldwin and Polis Introduce the Respect for Marriage Act to Repeal the Defense of Marriage Act (DOMA)
  35. ^ Frank Will Not Support DOMA Repeal
  36. ^ Johnson, Chris (2009-09-28). "Berry- ENDA should be LGBT priority". Washington Blade. http://www.washblade.com/thelatest/thelatest.cfm?blog_id=27385. Retrieved 2009-09-28. 

Bibliography

  • Feigen, Brenda. “Same-Sex Marriage: An Issue of Constitutional rights not Moral Opinions.” 2004. 27 Harv. Women’s L. J. 345.
  • “Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage.” 2004. 117 Harv. L. Rev. 2684.
  • Manning, Jason (2004-04-30). "Backgrounder: The Defense of Marriage Act". The Online News Hour. The News Hour with Jim Lehrer. http://www.pbs.org/newshour/bb/law/gay_marriage/act.html. Retrieved 2007-01-13. 
  • “Same Sex Marriage in the U.S.” About.com. 2005. About, Inc. 1 June 2004.
  • “Same Sex Marriage Passage” CQ Weekly. Congressional Quarterly. 2 May 2005.
  • United States. 104th Congress. Defense of Marriage Act. House of Representatives Committee Report. 1996.
  • Wardle, Lynn D. “A Critical Analysis of Constitutional Claims for Same Sex Marriage.” 1996. 1996 B.Y.U.L. Rev. 1.

External links


Defense of Marriage Act
Acronym DOMA
Enacted by the 104th United States Congress
Citations
Public Law 104-199
Stat. 110 Stat. 2419 (1996)
Codification
Legislative history
Major amendments
Relevant Supreme Court cases
None

Defense of Marriage Act is the short title of a federal law of the United States passed on September 21, 1996 as Public Law No. 104-199, 110 Stat. 2419. Its provisions are codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. Under the law, also known as DOMA, no state (or other political subdivision within the United States) needs to treat as a marriage a same-sex relationship considered a marriage in another state (DOMA, Section 2); the federal government defines marriage as a legal union between one man and one woman (DOMA, Section 3).

The bill was passed by Congress by a vote of 85–14 in the Senate[1] and a vote of 342–67 in the House of Representatives,[2] and was signed into law by President Bill Clinton on September 21, 1996.

At the time of passage, it was expected that Hawaii (and possibly other states) would soon legalize same-sex marriage, whether by legislation or judicial interpretation of either the state or federal constitution. Opponents of such recognition feared—and many proponents hoped—that the other states would then be required to recognize such marriages under the Full Faith and Credit Clause of the United States Constitution. Section 3 of the law—the part that defines marriage for federal purposes as the union of a man and a woman—was ruled unconstitutional by a federal district court judge in July 2010.[3][4]

Contents

Text

The following excerpts are the main provisions of the Act:

Section 2. Powers reserved to the states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of 'marriage' and 'spouse':

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.[5]

Legal history

In the 1993 case Baehr v. Lewin (later changed to Baehr v. Miike),[6] the Supreme Court of Hawaii ruled that the state must show a compelling interest in prohibiting same-sex marriage. This prompted concern among opponents of same-sex marriage that same-sex marriage might become legal in Hawaii and that other states would recognize those marriages. The Defense of Marriage Act was intended to free states from any obligation to recognize the marriage of same-sex couples in other states.

Georgia Representative Bob Barr, then a Republican, authored the Defense of Marriage Act and introduced it on May 7, 1996. It moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress. President Bill Clinton, a Democrat, signed it into law on September 21, 1996. Its Congressional sponsors stated, "[T]he bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex."[7]

The legislative history of the bill asserts authority to enact the law under Article IV Sec. 1, which grants Congress power to determine "the effect" of the full faith and credit each state must grant to each other states acts. Proponents made clear their purpose to normalize heterosexual marriage on a federal level, while still allowing each state to decide individually whether to recognize same-sex unions from other states.

The 1996 Republican Party platform endorsed DOMA, referencing only Section 2 of the Act: "We reject the distortion of [anti-discrimination] laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions."[8] The Democratic Party platform that year did not mention DOMA or marriage.[9]

In a June 1996 interview in the gay and lesbian magazine The Advocate, Clinton said: "I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered."[10] He did not mention the issue in his 2004 autobiography.[11] Over time, Clinton's personal views on same-sex marriage shifted. In a 2009 address he said: "I personally support people doing what they want to do. I think it's wrong for someone to stop someone else from doing that [gay marriage]."[12] Clinton added that he does not believe that it is a "federal question", stating, "I think all these states that do it should do it."[13]

The 2000 Republican Party platform endorsed DOMA in general terms but introduced a concern about possible judicial action: "We support the traditional definition of 'marriage' as the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages.[14] The Democratic Party platform that year did not mention DOMA or marriage in this context.[15]

President Barack Obama's political platform included full repeal of DOMA.[16][17] On June 12, 2009, the Department of Justice issued a brief defending the constitutionality of DOMA in the case of Smelt v. United States of America in line with its constitutional duty to enforce and defend federal laws.[18] This action drew scorn from some organizations in favor of same-sex marriage, such as the Human Rights Campaign and the Empowering Spirits Foundation, with a heavy focus on the brief's specific arguments.[19][20] On June 15, 2009, Human Rights Campaign President Joe Solmonese sent a four page letter to President Barack Obama in response to the Department of Justice brief, in which he laid out the case of LGBT people as equal human beings and urged, "We call on you to put your principles into action and send legislation repealing DOMA to Congress."[21]

In 2008, Congressman Barr apologized for sponsoring DOMA and said he thought it should be repealed,[22] saying it violates the principles of federalism.[23]

Repeal attempt

On September 15, 2009, 3 Democratic members of Congress, Jerrold Nadler of New York, Tammy Baldwin of Wisconsin, and Jared Polis of Colorado, introduced legislation to repeal DOMA called the Respect for Marriage Act. The bill had 91 original co-sponsors in the House of Representatives.[24][25] However, gay Congressman Barney Frank and John Berry, head of the Office of Personnel Management and the highest-ranking openly gay political appointee, did not support that effort, stating that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management filed by Gay & Lesbian Advocates & Defenders.[26][27]

Constitutionality

DOMA’s two effective sections raise separate constitutional issues.

Section 2 of DOMA explicitly addresses the constitutional requirement expressed in the Full Faith and Credit Clause in Article IV Section 1 of the United States Constitution, quoting its language directly. That clause establishes that the states have certain reciprocal obligations to one another, specifically to recognize each other's "public Acts, Records, and judicial Proceedings." That same section of the Constitution gives Congress the authority to legislate on the question of those obligations. Section 2 of DOMA excludes same-sex marriages from the state "acts" that any other state needs to recognize. Whether DOMA is an appropriate exercise of Congress’s power is disputed.[citation needed]

Section 3 of DOMA defining "marriage" and "spouse" for federal purposes raises a more extensive variety of constitutional issues. First, the Tenth Amendment to the United States Constitution reserves to the states any power not delegated to the federal government. Debate turns on whether or not the states retain the sole authority to define marriage, as a power not granted by the Constitution to the federal government. Some opponents of same-sex marriage who argue that the definition of marriage is a power reserved to the states do so in anticipation of a time when the federal government might substitute language that would recognize same-sex unions for DOMA's definitions.[citation needed] Similarly, proponents of same-sex marriage, particularly those in states that recognize same-sex unions, argue that the federal government has no authority to define marriage, but must defer to each state's definition.[citation needed] Libertarians also take this view, consistent with their general philosophy of limiting the role of the federal government and favoring local decision-making.[citation needed]

Second, the two sides debate whether or not the right to marriage can be restricted to a traditional definition—the right to participate in the historically accepted institution of marriage as the union of a man and a woman—and whether the right to marriage can be denied to those who choose same-sex partners. All agree that the Supreme Court has recognized a fundamental right to marriage in Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley. Critics of DOMA Section 3 contend that denial of the right to participate in marriage with the partner of one's choice, irrespective of gender, violates both the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. With respect to the Equal Protection Clause, critics contend that DOMA unfairly discriminates against one class of citizens, homosexuals, who have suffered from a history of discrimination.[citation needed]

Proponents of DOMA argue that Congress is under no obligation to recognize marriages solemnized by the states that do not fulfill a federal rational basis. Though, historically, Congress has recognized states' marriages despite their differences (i.e. different marriageable age laws), proponents argue that the fundamental understanding of marriage remained intact – a heterosexual, monogamous union.[citation needed] Proponents reject Equal Protection and Due Process claims against DOMA given the lack of criminal sanctions (i.e. anti-miscegenation laws which were struck under Loving) on same-sex marriages performed by states that opt to recognize them, as well as reject the claim that traditional marriage exists as a by-product of animus towards gays and lesbians.[citation needed]

Challenges in federal court

Federal Courts that first heard direct challenges to DOMA disagreed with the law's critics. See: In re Kandu[28], 315 B.R. 123, 138 (Bankr. D. Wash. 2004) and Wilson v. Ake 18 FLW Fed D 175 (2005).

In 2009, United States Court of Appeals for the Ninth Circuit Judge Stephen Reinhardt declared DOMA unconstitutional in an employment dispute resolution tribunal, where the federal government refused to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson.[29] As an employee of the federal judiciary, Levenson is prohibited from suing his employer in federal court. Rather, employment disputes are handled at employment dispute resolution tribunals in which a federal judge hears the dispute in their capacity as a dispute resolution official.

Several challenges[citation needed] to the law's constitutionality have been appealed to the United States Supreme Court, but so far the Court has declined to review any such case. Many states have still not decided whether to recognize other states' same-sex marriages.[citation needed] Only Iowa,[30] California, Connecticut, Vermont, New Hampshire, Massachusetts, and the District of Columbia have issued licenses for same-sex marriages.

On March 9, 2009, Arthur Smelt and Christopher Hammer filed a lawsuit, Smelt v. United States of America in Orange County, California, seeking to reverse DOMA and California's Proposition 8 as unconstitutional.[31] On June 12, 2009, the Department of Justice issued a brief in the case defending the constitutionality of DOMA.[32]

On March 3, 2009, GLAD filed a federal court challenge, Gill v. Office of Personnel Management based on the Equal Protection Clause and the federal government's heretofore consistent deference to each state's definition of marriage. The case questioned only the DOMA provision that the federal government defines marriage as the union of a man and a woman.[33][34] On May 6, 2010, Judge Joseph L. Tauro heard arguments in the U.S. District Court in Boston.[35]

On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Massachusetts v. United States Department of Health and Human Services, challenging the constitutionality of DOMA. The suit claims that Congress "overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people."[36] Judge Tauro heard arguments in Massachusetts on May 26, 2010.

On July 8, 2010, Judge Tauro issued his rulings in both Gill and Massachusetts, granting summary judgment for the plaintiffs in both cases. He found in Gill that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In Massachusetts he held that the same section of DOMA violates the Tenth Amendment and falls outside Congress' authority under the Spending Clause of the Constitution.[3][4] Those decisions are automatically stayed for two weeks by federal court rules and are likely to be stayed further if the Department of Justice appeals, as it is expected to do.[37]

DOMA and state legislation

Since the passage of DOMA, there has been an increased focus on the variety among states with regard to the legal status of same-sex marriage. Some states have proactively, by legislation or referendum, determined that they will not recognize same-sex marriages.[38]

Currently only Connecticut,[39] Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia allow marriages between persons of the same sex. The California Supreme Court legalized same-sex marriage on June 16, 2008,[40] but on November 4, 2008, voters passed a constitutional amendment to restrict marriage to members of the opposite sex.[41]

New York, Maryland, and the District of Columbia recognize such marriages from other jurisdictions. Other states may recognize such a marriage as a civil union or domestic partnership (Nevada, California,[42] and New Jersey).

Some states recognize civil unions to represent same-sex relationships, considering them equivalent to marriage. Other states (including Nevada) have domestic partnerships in place to grant same-sex relationships some of the benefits the state bestows on married couples. However, there are procedural differences such as differing age limitations (in many states, the legal age to marry is 16, while the legal age to enter into a domestic partnership is 18), residential requirements (married individuals are not required to live in the same residence with their spouse, while domestic partners are required to share a residence, although in states such as Nevada such co-residency may be part-time).[43]

A majority of the states, including those that have some benefits for same-sex relationships, have restricted recognition of marriage to unions of one man and one woman in state law, have some law defining marriage as such, or have an amendment to their state constitution to that effect. As of April 2009, 29 states have enacted constitutional amendments defining marriage as the union of a man and a woman, and another 13 states have statutory bans, including Maine, which approved a same-sex marriage law that was repealed by referendum in the United States general elections, 2009.[38]

See also

References

  1. ^ "On Passage of the Bill (H.R. 3396)". United States Senate. 1996-09-10. http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=2&vote=00280. Retrieved 2009-01-18. 
  2. ^ "Final vote results for roll call 316". United States House of Representatives. 1996-07-12. http://clerk.house.gov/evs/1996/roll316.xml. Retrieved 2009-01-18. 
  3. ^ a b Geidner, Chris (2010-07-08). "Federal Court Rules DOMA Sec. 3 Violates Equal Protection". Metro Weekly. http://www.metroweekly.com/poliglot/2010/07/federal-court-rules-doma-viola.html. Retrieved 2010-07-08. 
  4. ^ a b DOMA decisions released
  5. ^ "Defense of Marriage Act". United States Government Printing Office. 1996-09-21. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_laws&docid=f:publ199.104. Retrieved 2009-01-18. 
  6. ^ "State of Hawaii Report of the Commission on Sexual Orientation and the Law, Chapter 2 Footnotes". State of Hawaii. 1995. http://hawaii.gov/lrb/rpts95/sol/cpt2ftn.html. Retrieved 2009-01-18. 
  7. ^ Lect Law: "Defense Of Marriage Act" 5/96 H.R. 3396 Summary/Analysis, accessed July 15, 2010
  8. ^ American Presidency Project: "Republican Party Platform of 1996," August 12, 1996, accessed July 15, 2010
  9. ^ American Presidency Project: "Democratic Party Platform of 1996," August 26, 1996, accessed July 15, 2010
  10. ^ Moss, J. Jennings. Bill Clinton interview, 1996. The Advocate. June 25, 1996. Archived by Wayback Machine.
  11. ^ Washington Blade: "Clinton says gays overly critical of DADT; Memoir omits DOMA fight, Mixner, many out gay appointees," June 25, 2004, accessed February 12, 2010
  12. ^ Galloway, Jim (July 14, 2009). "Bill Clinton drops opposition to same-sex marriage". Atlanta Journal-Constitution. http://blogs.ajc.com/political-insider-jim-galloway/2009/07/14/bill-clinton-drops-opposition-to-same-sex-marriage/?cxntfid=blogs_political_insider_jim_galloway. 
  13. ^ Tracey, Michael (July 14, 2009). "Bill Clinton Backs Same-Sex Marriage". The Nation. http://www.thenation.com/doc/20090720/tracey. 
  14. ^ "American Presidency Project: "Democratic Party Platform of 2000," July 31, 2000, accessed July 15, 2010
  15. ^ American Presidency Project: "Democratic Party Platform of 1996," August 14, 2000, accessed July 15, 2010
  16. ^ Barack Obama on LGBT Rights
  17. ^ Open Letter from Barack Obama Concerning LGBT Equality
  18. ^ "Obama Admin Moves To Dismiss Defense Of Marriage Act Challenge". Huffington Post. 2009-06-12. http://www.huffingtonpost.com/2009/06/12/obama-defends-antigay-def_n_214764.html. Retrieved 2009-06-12. 
  19. ^ "Gay Blogosphere Erupts Over Obama's DOMA Defense". On Top Magazine. 2009-06-12. http://www.ontopmag.com/article.aspx?id=4002&MediaType=1&Category=26. Retrieved 2009-06-12. 
  20. ^ "ESF Condemns Obama for Defending Defense of Marriage Act" (PDF). Empowering Spirits Foundation Press Release. 2008-06-12. http://www.empoweringspirits.org/PRDocServer/DOMA_Obama_Defense_061209.pdf. Retrieved 2009-06-12. 
  21. ^ Human Rights Campaign, Joe Solmonese Letter to Obama on DOMA, June 15, 2009 "Open Letter to President Obama" (PDF). Human Rights Campaign. 2008-06-15. http://www.hrcbackstory.org/wp-content/uploads/2009/06/Solmonese-letter-to-Obama-re-DOMA-brief-June-15-2009.pdf. Retrieved 2009-09-07. 
  22. ^ Richardson, Valerie (May 26, 2008). "Barr tops 9 others for Libertarian nod". Washington Times. http://www.washingtontimes.com/news/2008/may/26/barr-tops-9-others32for-libertarian-nod/print/. 
  23. ^ "U.S. Moves To Dismiss Gay Marriage Case". CBS News. Associated Press. June 12, 2009. http://www.cbsnews.com/stories/2009/06/12/national/main5084328.shtml. 
  24. ^ New York Times: Bernie Becker, "House Dems Take Aim at Marriage Law," September 15, 2009, accessed July 15, 2010
  25. ^ Eleveld, Kerry (2009-09-15). "Respect for Marriage Act Debuts". The Advocate. http://www.advocate.com/Politics/Washington_D_C_/Respect_for_Marriage_Act_Debuts/. Retrieved 2009-09-15. 
  26. ^ Frank Will Not Support DOMA Repeal
  27. ^ Johnson, Chris (2009-09-28). "Berry- ENDA should be LGBT priority". Washington Blade. http://www.washblade.com/thelatest/thelatest.cfm?blog_id=27385. Retrieved 2009-09-28. [dead link]
  28. ^ "Kandu Bankruptcy Decision" (PDF). http://www.domawatch.org/cases/9thcircuit/InreKanduBkrDecision.pdf. Retrieved 2009-11-06. 
  29. ^ "Federal judge rules denial of health coverage to same-sex spouse unconstitutional". Los Angeles Times. 2009-02-09. http://latimesblogs.latimes.com/lanow/2009/02/gay-marriage.html. Retrieved 2009-11-06. 
  30. ^ Davey, Monica (2007-09-01). "Iowa Permits Same-Sex Marriage, for 4 Hours, Anyway". The New York Times. http://www.nytimes.com/2007/09/01/us/01iowa.html. 
  31. ^ "Smelt v. United States of America Notice of Removal". United States District Court – Southern Division. http://www.scribd.com/doc/15097245/Smelt-v-United-States-of-America-Notice-of-Removal. Retrieved 2009-11-06. 
  32. ^ Egelko, Bob (2009-06-12). "Obama Angers Gays With Marriage Law Defense". San Francisco Chronicle. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/06/12/MND5186EV8.DTL&tsp=1. Retrieved 2009-11-06. 
  33. ^ Goodnough, Abby; Zezima, Katie (2009-03-02). "Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples". The New York Times. http://www.nytimes.com/2009/03/03/us/03marriage.html. Retrieved 2009-11-06. 
  34. ^ ""DOMA" Means Federal Discrimination Against Married Same-Sex Couples". GLAD. http://www.glad.org/doma/lawsuit. 
  35. ^ Seelye, Katharine Q. (2010-05-06). "Marriage Law Is Challenged as Equaling Discrimination". New York Times. http://www.nytimes.com/2010/05/07/us/07doma.html. Retrieved 2010-06-05. 
  36. ^ Finucane, Martin (2009-07-08). "Mass. challenges federal Defense of Marriage Act". Boston Globe. http://www.boston.com/news/local/breaking_news/2009/07/mass_to_challen.html. Retrieved 2009-11-06. 
  37. ^ Denise Lavoie (July 9, 2010). "White House silent on Mass. gay marriage ruling". http://www.google.com/hostednews/ap/article/ALeqM5jZVhxGXCMRA-mJB4JYXiICP3a6jQD9GRRQEG0. Retrieved 2010-07-10. 
  38. ^ a b Human Rights Campaign: "Statewide Marriage Prohibitions," January 13, 2010, accessed July 15, 2010
  39. ^ New York Times: Lisa W. Foderard, "Gay Marriages Begin in Connecticut," November 12, 2008, accessed July 11, 2010]
  40. ^ "California Supreme Court Denies Rehearing and Stay in Marriage Cases" (PDF). 2008-06-04. http://www.courtinfo.ca.gov/presscenter/newsreleases/NR31-08.PDF. Retrieved 2008-06-04. 
  41. ^ "Election Results: State Ballot Measures". 2008-11-07. http://vote.sos.ca.gov/Returns/props/59.htm. 
  42. ^ http://sacramento.bizjournals.com/sacramento/stories/2009/10/12/daily8.html
  43. ^ [1]

Bibliography

  • Feigen, Brenda. “Same-Sex Marriage: An Issue of Constitutional rights not Moral Opinions.” 2004. 27 Harv. Women’s L. J. 345.
  • “Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage.” 2004. 117 Harv. L. Rev. 2684.
  • Manning, Jason (2004-04-30). "Backgrounder: The Defense of Marriage Act". The Online News Hour. The News Hour with Jim Lehrer. http://www.pbs.org/newshour/bb/law/gay_marriage/act.html. Retrieved 2007-01-13. 
  • “Same Sex Marriage in the U.S.” About.com. 2005. About, Inc. 1 June 2004.
  • “Same Sex Marriage Passage” CQ Weekly. Congressional Quarterly. 2 May 2005.
  • United States. 104th Congress. Defense of Marriage Act. House of Representatives Committee Report. 1996.
  • Wardle, Lynn D. “A Critical Analysis of Constitutional Claims for Same Sex Marriage.” 1996. 1996 B.Y.U.L. Rev. 1.

External links


Source material

Up to date as of January 22, 2010

From Wikisource

Public Law 104-199
by the 104th Congress of the United States
Defense of Marriage Act
Pub.L. 104−199, 110 Stat. 2419, H.R. 3396, enacted September 21, 1996. The Defense of Marriage Act, or DOMA, is the commonly-used name of a federal law of the United States that is codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. The bill was passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives, and was signed by President Bill Clinton on September 21, 1996.
Note: This is the original legislation as it was initially enacted. Like many laws, this statute may have since been amended once or many times, and the text contained herein may no longer be legally current. Follow the interlinks within the content or check to see What Links Here for more.


104TH UNITED STATES CONGRESS
2ND SESSION

An Act

To define and protect the institution of marriage.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

Wikipedia logo Wikipedia has more on:
Defense of Marriage Act.
This Act may be cited as the ``Defense of Marriage Act´´.

SEC. 2. POWERS RESERVED TO THE STATES.

(a) IN GENERAL—
Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
``Sec. 1738C. Certain acts, records, and proceedings and the effect thereof
``No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.´´.
(b) CLERICAL AMENDMENT—
The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
``1738C. Certain acts, records, and proceedings and the effect thereof.´´.

SEC. 3. DEFINITION OF MARRIAGE.

(a) IN GENERAL—
Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
``Sec. 7. Definition of 'marriage' and 'spouse'
``In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.´´.
(b) CLERICAL AMENDMENT—
The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
``7. Definition of 'marriage' and 'spouse'.´´.


Approved September 21, 1996.

Legislative History

  • HOUSE REPORTS:
    • No. 104-664 (Comm. on the Judiciary).
  • CONGRESSIONAL RECORD, Vol. 142 (1996):
    • July 11, 12, considered and passed House.
    • Sept. 10, considered and passed Senate.







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