The Defense of Marriage Act, or DOMA, 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 has two effects:
- 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.
- 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.
Three states (Massachusetts, Connecticut, and Iowa) currently allow same-sex marriage (with Vermont, Maine and New Hampshire having passed not-yet-implemented legislation to join that list), five states recognize some alternative form of same-sex union, twelve states ban any recognition of any form of same-sex unions including civil union, twenty-eight states have adopted amendments to their state constitution prohibiting same-sex marriage, and another twenty states have enacted statutory DOMAs.
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 specifically to "quarantine" same-sex marriage and 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.[6]
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 and to permit each state to decide for itself whether to recognize same-sex unions concluded in another state. Opponents variously question whether the power asserted extends so far as to permit non-recognition altogether, argue that the law is unconstitutionally vague by leaving out essential details, assert a constitutional right to same-sex marriage, or some combination of the three.
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.[7]
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."[8]
President Barack Obama's political platform included full repeal of the DOMA.[9][10] 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, signaling a sharp reversal by the Obama administration.[11] This measure drew much anger from organizations in favor of gay marriage such as the Human Rights Campaign and the Empowering Spirits Foundation.[12][13]
Nothing in the Act prevents any level of government from granting equivalent rights to domestic partners; only the term "marriage" is protected.[citation needed]
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 section of DOMA and the Full Faith and Credit Clause, which is primarily concerned with the second section of DOMA.
A 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. 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:
Supporters of DOMA argue that the act is a legitimate exercise of Congressional power under the Full Faith and Credit Clause and does not violate either the Equal Protection Clause or the due process clause of the United States Constitution. The only Federal Courts to hear direct challenges to DOMA have agreed with supporters on these points (See: In re Kandu, 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. [15] 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 new Federal Court challenge, Gill v. OPM based on the Equal Protection Clause. It does not address the DOMA provision allowing states to not recognize same-sex marriages performed in other states, but instead questions the DOMA provision that the federal government does not have to recognize same-sex marriages.[16][17]
Several challenges to the law's constitutionality have been appealed to the United States Supreme Court since its enactment, 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, as only Iowa[18], California, Connecticut, and Massachusetts 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, which was filed in Orange County, California, and seeks to reverse DOMA and Proposition 8 as unconstitutional.[19] On June 12, 2009 the Department of Justice issued a brief defending the constitutionality of DOMA.[20]
On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Commonwealth v. United States Department of Health and Human Services, challenging the consitutionality 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."[21]
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.[22]
Opponents of same-sex marriage assert that the issue should be decided by a simple majority in a single election or through the legislative process, rather than by the judiciary in its interpretation of the constitution. Under this view, it is proper to use the DOMA or the "public policy exception" to the Full Faith and Credit clause to allow states to reject another state's recognition of same-sex marriage, because the will of the voters would be defeated if all states were required to recognize same-sex marriages contracted in any state that allows them, or if such marriages were recognized by the federal courts as a fundamental right.[citation needed]
Gay rights advocates, conversely, feel that the majoritarian rule is denying 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. Under this view, there is no objection to the use of full faith and credit clause as a tactic to force the issue.
Currently Connecticut,[23] Iowa, and Massachusetts are the only states that allow marriages between persons of the same sex, although they will also be permitted in Vermont and Maine as of September 2009 and in New Hampshire as of January 2010. California legalized same-sex marriage on June 16, 2008,[24] but on November 8, 2008, voters amended the state constitution to restrict marriage to members of the opposite sex.[25]
New York and Washington DC recognize such marriages from other jurisdictions. Other states may recognize such a marriage as a civil union or domestic partnership (Vermont, Nevada, and New Jersey). The majority of the states including those that have some representation of same sex relationships, have DOMA adopted as state law, have some law defining marriage according to DOMA, or have an amendment to their state constitution with the effect of DOMA. 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 represent same sex relationships which usually grant all the benefits the state bestows on married couples. There are procedural differences such as differing age limitations (in many states, the legal age to get married 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[26]). However, it is often easier to dissolve a domestic partnership than a legal marriage (such as in Nevada, where dissolution requires filing of a form and paying of a fee provided certain circumstances are met[27]).[citation needed]
As of April 2009, 29 states have enacted constitutional amendments defining marriage as between a man and a woman, and another 13 states have statutory bans (this includes Maine, which has approved a same-sex marriage bill that may be subjected to a referendum).[22]
See also
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 on 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.
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