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Defense of Marriage Act

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Defense of Marriage Act
Great Seal of the United States
Long titleDefense of Marriage Act
Acronyms (colloquial)DOMA
Enacted bythe 104th United States Congress
EffectiveJuly 17, 1990
Citations
Public law104-199
Statutes at Large110 Stat. 2419 (1996)
Legislative history

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:

  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 may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.

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]

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 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]

Until May 2009, President Barack Obama's political platform included full repeal of the DOMA.[9][10] As of May 2009, President Barack Obama no longer explicitly supported full repeal of the DOMA. [11][12]

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)).

On March 3, 2009, GLAD filed a new Federal Court challenge 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.[13][14] The Obama administration did not comment on the lawsuit but reaffirmed its support of the law's repeal, although there has been no public indication that he intends to press for the repeal in the near future.[15]

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, which is unsurprising as only Iowa[16], 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, was filed in Orange County, California, and seeks to reverse DOMA and Proposition 8 as unconstitutional.[17]

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.[18]

Opponents of same-sex marriage assert that the issue should be decided democratically through the legislative process, rather than through the judicial process. 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 democratic process is denying the group 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,[19] 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,[20] but on November 8, 2008, voters amended the state constitution to restrict marriage to members of the opposite sex.[21]

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 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 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). However, it is often easier to dissolve a domestic partnership than a legal marriage.[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).[18]

See also

References

  1. ^ "On Passage of the Bill (H.R. 3396)". United States Senate. 1996-09-10. Retrieved 2009-01-18.
  2. ^ "Final vote results for roll call 316". United States House of Representatives. 1996-07-12. Retrieved 2009-01-18.
  3. ^ "Defense of Marriage Act". United States Government Printing Office. 1996-09-21. 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. Retrieved 2009-01-18.
  5. ^ "Defense Of Marriage Act" 5/96 H.R. 3396 Summary/Analysis
  6. ^ Barr tops 9 others for Libertarian nod
  7. ^ Clinton book sidesteps gay events, issues
  8. ^ Bill Clinton interview, 1996
  9. ^ Barack Obama on LGBT Rights
  10. ^ Open Letter from Barack Obama Concerning LGBT Equality
  11. ^ Whitehouse.gov
  12. ^ White House Eliminated Pledge To Repeal Defense Of Marriage Act From Website
  13. ^ Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples
  14. ^ “DOMA” Means Federal Discrimination Against Married Same-Sex Couples
  15. ^ Obama administration mum on DOMA challenge
  16. ^ Iowa Permits Same-Sex Marriage, for 4 Hours, Anyway
  17. ^ "Smelt v. United States of America Notice of Removal". United States District Court - Southern Division. Retrieved 2009-05-10.
  18. ^ a b Statewide Marriage Prohibitions
  19. ^ Judge Clears Way For Same-Sex Marriages
  20. ^ "California Supreme Court Denies Rehearing and Stay in Marriage Cases" (PDF). 2008-06-04. Retrieved 2008-06-04.
  21. ^ "Election Results: State Ballot Measures". 2008-11-07.

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. 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.
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