Defense of Marriage Act

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Defense of Marriage Act
Full title Defense of Marriage Act
Acronym / colloquial name DOMA
Enacted by the 104th United States Congress
Citations
Public Law 104-190
U.S. Statutes at Large 110 Stat. 2419 (1996)
Codification
Legislative history
Major amendments

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) need 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 by President Bill Clinton on September 21, 1996.

At the time of passage, it was expected that at least one state 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.

Including the results of the 2006 midterm elections, two states (Massachusetts and California) allow same-sex marriage, 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-five states have adopted amendments to their state constitution prohibiting same sex marriage, and another twenty states have enacted statutory DOMAs.

On May 15, 2008 the California DOMA was thrown out by the state supreme court as a violation of equal protection and same-sex marriage became legal in California.[1]

Contents

[edit] 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]

[edit] Legal history

In the 1993 case Baehr v. Lewin, 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 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." [4]

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.

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." [5]

[edit] 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, 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 including:

Several challenges to the law's constitutionality have been presented to the United States Supreme Court since its enactment, but so far the Court has declined to review any such cases. Many states have still not decided whether to recognize other states' same-sex marriages or not, which is unsurprising as only Massachusetts, and soon California also, has issued licenses for same-sex marriages.

DOMA may be largely unnecessary, regardless of whether it is constitutional. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to apply the law of another state in contravention of its own public policy. The public policy exception has been applied in cases of marriage such as polygamy, miscegenation or consanguinity.

Constitutional objections to DOMA might be rendered moot by amendment of the Constitution or by stripping courts of jurisdiction to rule on the case. In response to the growing number of legal and political challenges, some proponents of DOMA have proposed the Federal Marriage Amendment to the U.S. Constitution. The strongest version of a Federal Marriage Amendment would override any possible application of the Full Faith and Credit clause to same-sex partnerships, marriages or civil unions in other states and would permanently prohibit both the federal and state governments from recognizing same-sex unions.[citation needed] It would also prevent any state from legalizing same-sex marriages entered into within the state. Another alternative, endorsed by the 2004 Republican Party political platform, is for Congress to pass a law protecting DOMA from judicial scrutiny. Some have argued that this itself would be unconstitutional.

Despite all such arguments, no attempt to challenge the law has even reached the Supreme Court, and all lower court rulings have upheld the constitutionality of the law.[citation needed] With most states deciding for themselves the status of gay marriage, the Defense of Marriage Act may have largely become moot.

[edit] 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.

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 and/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.

Gay rights advocates, conversely, feel that the democratic process is denying them a fundamental right. Since the system of checks and balances in the United States leaves it to the judiciary 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 they struck down racially restrictive marriage laws. Under this view, there is no objection to the use of full faith and credit as a tactic to force the issue.

Both supporters and opponents of same-sex marriage accuse the other side of trying to "legislate morality."

Currently Massachusetts and California are the only states that recognize same-sex marriages. 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, but are not equivalent to marriage.

Including the results of the 2006 Midterm Elections, twenty-six states have enacted constitutional amendments have defined marriage as between a man and a woman, and another twenty states have enacted statutory DOMAs.

[edit] See also

[edit] References

  • 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.
  • “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.

[edit] External links

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