A Short History of the Defense of Marriage Act by bsj14523

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									                                                           Gay & Lesbian Advocates & Defenders
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                                                           Website: www.glad.org



            A Short History of the Defense of Marriage Act

What is the Historical Context for DOMA’s Enactment in 1996 and What Has
Happened in the States Since Then?
                                                   Hawaii

        In 1993, the Hawaii Supreme Court decided the case known as Baehr v. Lewin, and reinstated a
claim by three couples that it was unconstitutional for the State of Hawaii to deny them the freedom to
marry. Anti-gay activists and others then began a coordinated state campaign to deny marriage rights
to same-sex couples in the states, and a new wave of anti-gay, anti-marriage laws began in 1995 in
Utah, to blunt any respect for the marriages of same-sex couples they knew would eventually become
legal some day.

                                                  Congress

        Congress also became involved, especially after the Republican presidential candidates all took
a pledge to “protect marriage” during the Iowa caucuses in 1996, by which they meant they were
committed to denying marriage to same-sex couples. In that highly politicized environment, a bill
known as “The Defense of Marriage Act” was filed in May in the Congress. It was debated by the
United States Senate even as the Hawaii courts were hearing evidence about the state’s claimed
interests in denying marriage to same-sex couples, interests the courts found insufficient to justify
discrimination against gay and lesbian couples. The bill swept through Congress and was signed into
law by President Bill Clinton on September 21, 1996.

                                         The Federal DOMA Law

       The federal DOMA law has two substantive parts, Sections 2 and 3. Section 2 authorizes states
to establish policies with respect to marriages of same-sex couples. Section 3 deals with federal
discrimination and is the only portion of DOMA challenged in GLAD’s lawsuit.

       For purposes of background, Section 2 of DOMA says states may disrespect the marriages of
same-sex couples if they choose to do so as a matter of their own public policy.1 This is the issue that

1
    This is codified at 29 United States Code section 1738C. The statute provides:
      “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.”
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dominated public and Congressional discussion of DOMA and not Section 3. While marriages are
mostly respected across state lines, it is also true that states have the power – within constitutional
limits – to decide what marriages to accept in accord with their own public policies. In this sense,
DOMA Section 2 was really more of an invitation to states to pass laws hostile to recognition of the
marriages of gay and lesbian couples.

        Section 3 of DOMA applies to the federal government only. It overrides a state’s
determination that a same-sex couple is married and says that they are not married for purposes of all
federal laws and programs, even though the federal government has always deferred to state
determinations of marital status. Under this law, “the word ‘marriage’ means only the legal union of a
man and a 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.”2 This law requires all federal departments and agencies to disrespect
the valid state-licensed marriages of same-sex couples but not other married couples. As a result, only
married same-sex couples are denied all rights, protections and responsibilities associated with
marriage at the federal level.

       As to the entire DOMA law, the House Judiciary Committee issued the authoritative Report
from the Congress about it. Over a spirited dissent, the majority of the Committee recommended
passage for the following reasons:

          (1) H.R. 3396 [the bill number] ADVANCES THE GOVERNMENT’S INTEREST IN
          DEFENDING AND NURTURING THE INSTITUTION OF TRADITIONAL
          HETEROSEXUAL MARRIAGE.

          (2) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING
          TRADITIONAL NOTIONS OF MORALITY.

          (3) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PROTECTING STATE
          SOVEREIGNTY AND DEMOCRATIC SELF GOVERNANCE.

          (4) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PRESERVING
          SCARCE GOVERNMENT RESOURCES.”

                                           Activity in the States

       When Congress passed DOMA, it was seeking to thwart a class of marriages it expected states
would some day begin to license, that is, marriages of same-sex couples. It was not until November
2003 with Massachusetts’ historic decision in Goodridge v. Department of Public Health that any state
ended its exclusion of gay and lesbian people from marriage, and DOMA’s federal discrimination
began to have an affect on U.S. citizens as actual married couples.



2
    This is codified at 1 United States Code section 7. It provides:
      “In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation
      of the various administrative bureaus and agencies in 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.”

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        Imitating the federal government, some states also passed laws specifically denying respect to
marriages of same-sex couples. The Goodridge case was filed in the Massachusetts trial court in April
2001, and at that point, 38 states had already passed laws or constitutional amendments denying
marriage rights (and sometimes more) to same-sex couples in their states. After Goodridge, many
states with existing anti-marriage laws passed anti-gay amendments to their state constitutions.

       Before Goodridge, a few states had already taken steps to respect relationships of same-sex
couples, particularly Vermont which passed the nation’s first civil union law in 2000. California
passed its first state-wide domestic partner law in 1999 and continued to expand it. Hawaii passed a
“reciprocal beneficiary law” in 1997. The District of Columbia has a wide variety of domestic
partnership protections.

        Goodridge was also a beacon of fairness and equality to other states, and accelerated the pace
of change. After Massachusetts ruled, state legislatures in several states approved of civil unions or
expansive domestic partnership measures, including Connecticut (2005), California (enacted 2003 and
effective 2005), New Hampshire (enacted 2007 and effective 2008), New Jersey (enacted 2006 and
effective 2007) and Oregon (enacted 2007 and effective 2008), while more modest measures passed in
Maine (2004) and Washington State (2007).

        Courts in California (2008) and Connecticut (2008) have invalidated laws denying marriage to
same-sex couples based on the bedrock constitutional principles of equality and liberty in their state
constitutions. Same-sex couples are marrying in Connecticut and they, too, are affected by federal
discrimination against their marriages. In California, over 18,000 couples wed between June and
November 2008, but marriages of same-sex couples ceased with the passage of a state-wide ballot
measure on November 4, 2008. Judicial proceedings about the validity of the ballot measure are
pending in the California Supreme Court.

Published March 3, 2009




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