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]

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

• Baker v. Nelson
• LGBT rights in the United States
• Marriage Act
• Marriage Protection Act
• Same-sex marriage in the United States
• Same-sex unions in the United States

References

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

• Summary and analysis at Lectric Law
• State Defense of Marriage Acts — state-by-state summary
• House roll call vote
• Senate roll call vote
• About.com state-by-state list
• GovTrack
• THOMAS (Library of Congress)
• Court decision in Gill v. Office of Personnel Management
• Court decision in Commonwealth v. United States Department of Health and Human Services