DOMA

The 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: 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. 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 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 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 2008 general elections, two states (Massachusetts 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-eight states have adopted amendments to their state constitution prohibiting same sex marriage, and another twenty states have enacted statutory DOMAs.

DOMA Fact Sheet

DOMA FACT SHEET - Separate is NOT Equal.pdf

Challenges In Federal Court

 

Federal Courts that first heard direct challenges to DOMA disagreed with the law's critics. 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, United States Court of Appeals for the Ninth Circuit Judge Stephen Reinhardt declared DOMA unconstitutional in an employment dispute resolution tribunal, 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 his employer in federal court. Rather, employment disputes are handled at employment dispute resolution tribunals in which a federal judge hears the dispute in their capacity as a dispute resolution official.

Several challenges to the law's constitutionality have been appealed to the United States Supreme Court, 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. Only Iowa, California, Connecticut, Vermont, New Hampshire, Massachusetts, and the District of Columbia 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, California, seeking to reverse DOMA and California's Proposition 8 as unconstitutional. On June 12, 2009, the Department of Justice issued a brief in the case defending the constitutionality of DOMA.

On March 3, 2009, GLAD filed a federal court challenge, Gill v. Office of Personnel Management based on the Equal Protection Clause and the federal government's heretofore consistent deference to each state's definition of marriage. The case questioned only the DOMA provision that the federal government defines marriage as the union of a man and a woman. On May 6, 2010, Judge Joseph L. Tauro heard arguments in the U.S. District Court in Boston.

On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Massachusetts 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." Judge Tauro heard arguments in Massachusetts on May 26, 2010.

On July 8, 2010, Judge Tauro issued his rulings in both Gill and Massachusetts, granting summary judgment for the plaintiffs in both cases. He found in Gill that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In Massachusetts he held that the same section of DOMA violates the Tenth Amendment and falls outside Congress' authority under the Spending Clause of the Constitution. Those decisions were automatically stayed for two weeks by federal court rules and were stayed further after the Department of Justice entered an appeal on October 12, 2010.