Defense of Marriage Act
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, three states (Massachusetts, California and Connecticut) 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 found unconstitutional by the California Supreme Court as a violation of equal protection; the decision came into effect on June 16, 2008.[3][4] A proposed constitutional amendment overriding the Court's decision has been placed on the 2008 California general election ballot.[5][6] 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.”[7]
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 authored by 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." [8] Barr has since apologized for his sponsorship of the DOMA. 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 samesex 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." [9]
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:
Congress over-reached its authority under the Full Faith and Credit Clause. The law illegally discriminates and violates the Equal Protection Clause. The law violates the fundamental right to marriage (including same-sex marriage) under the due process clause.
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 cases. Many states have still not decided whether to recognize other states' same-sex marriages or not, which is unsurprising as only California and Massachusetts have issued licenses for same-sex marriages. DOMA Section 2 is occasionally argued to be unnecessary, regardless of whether it is constitutional. Federal courts have been reluctant in the past to compel any state to apply the laws of another state when so doing would contravene 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. 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.
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. Supporters of same-sex marriage accuse the other side of trying to "legislate morality." Currently Massachusetts, California, and Connecticut are the only states that allow marriages between persons of the same sex. New York, Rhode Island, and New Mexico recognize such marriages from other jurisdictions. The situation in Iowa is unclear. 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, however these are not equivalent to marriage.