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Defense of Marriage Act, or DOMA, is the short title of a federal law of the United Statesmarker passed on September 21, 1996 as Public Law No. 104-199, 110 Stat. 2419. Its provisions are codified at and . 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 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 and a vote of 342-67 in the House of Representatives, 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.

Four states (Massachusetts, Connecticut, Iowa, and Vermont) currently allow same-sex marriage (with 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 state-level statutes to the same effect.

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.

Legal history

In the 1993 case Baehr v. Lewin (name later changed to Baehr v. Miike), the Hawaii State Supreme Courtmarker 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." Barr has since apologized for his sponsorship of the DOMA and thinks it should be repealed, saying it violates the principles of federalism.

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.

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." 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]." 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."

President Barack Obama's political platform included full repeal of DOMA. 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. 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. 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.

On September 15, 2009, representatives Jerry Nadler of New Yorkmarker, Tammy Baldwin of Wisconsinmarker, and Jared Polis of Coloradomarker introduced the Respect for Marriage Act, which would repeal DOMA. The bill had 91 original cosponsors.

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:



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.

Federal Courts that have heard direct challenges to DOMA have agreed with supporters of DOMA 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. 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.

Several challenges to the law's constitutionality have been appealed to the United States Supreme Courtmarker, 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, California, Connecticut, Vermont, 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 in Orange County, Californiamarker, seeking to reverse DOMA and Proposition 8 as unconstitutional. On June 12, 2009 the Department of Justice issued a brief defending the constitutionality of DOMA.

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."

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 by a simple majority in a single election or through the legislative process, rather than by the judiciary in its interpretation of the constitution.

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, Iowa, Massachusetts and Vermont are the only states that allow marriages between persons of the same sex, although they will also be permitted in New Hampshire as of January 2010. California legalized same-sex marriage on June 16, 2008, but on November 8, 2008, voters passed a proposition to restrict marriage to members of the opposite sex.

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 (Nevada, California, 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).

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 failed, keeping same-sex marriage illegal in the state).

Repeal Attempts

On September 15, 2009, Democratic Congressman Jerrold Nadler from New Yorkmarker introduced legislation called the Respect for Marriage Act to repeal DOMA. The bill has 91 original co-sponsors in the House of Representatives. 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

See also



References

  1. "Defense Of Marriage Act" 5/96 H.R. 3396 Summary/Analysis
  2. Clinton book sidesteps gay events, issues
  3. Moss, J. Jennings. Bill Clinton interview, 1996. The Advocate. June 25, 1996. Archived by Wayback Machine.
  4. Barack Obama on LGBT Rights
  5. Open Letter from Barack Obama Concerning LGBT Equality
  6. Human Rights Campaign, Joe Solmonese Letter to Obama on DOMA, June, 15, 2009
  7. Judge Clears Way For Same-Sex Marriages
  8. http://sacramento.bizjournals.com/sacramento/stories/2009/10/12/daily8.html
  9. [1]
  10. Statewide Marriage Prohibitions
  11. Nadler, Baldwin and Polis Introduce the Respect for Marriage Act to Repeal the Defense of Marriage Act (DOMA)
  12. Frank Will Not Support DOMA Repeal


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.
  • “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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