Defense of Marriage Act

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The Defense of Marriage Act, or DOMA, Pub. L. No. 104-199, 100 Stat. 2419 (Sept. 21, 1996), codified at Template:Usc and Template:Usc, is a federal law of the United States passed by Congress and signed by President Bill Clinton on September 21, 1996. The law provides:

First, it allows each state (or similar political division in the United States) to deny any marriage-like relationship between persons of the same sex which has been recognized in another state.
Second, it explicitly recognizes for purposes of federal law that marriage is "a legal union of one man and one woman as husband and wife" and by stating that spouse "refers only to a person of the opposite sex who is a husband or a wife."

Congressional proponents assert authority to enact the law under the Full Faith and Credit Clause of the United States Constitution with the purpose to normalize heterosexual marriage on a federal level and permit each state to decide for itself whether to recognize "same-sex unions" if other states did recognize same-sex unions. Forty states have enacted laws denying the recognition of same-sex marriages, which is more than the needed number of states required to amend the United States Constitution. Six states currently have established laws recognizing some form of same-sex unions, and twelve states ban any recognition of same-sex unions including civil unions.

1 Constitutionality
2 DOMA and state legislation
3 Legal history
4 See also
5 External links

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Constitutionality

The Full Faith and Credit clause grants Congress the authority to "prescribe...the Effect" which the laws of one state have in another. Some have argued that DOMA is unconstitutional and would not survive judicial scrutiny under the Supreme Court of the United States because it goes beyond the powers granted to Congress by that clause. Others believe that DOMA is constitutional. The strongest version of a Federal Marriage Amendment would permanently prohibit both the federal and state governments from recognizing same-sex unions. 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.

From a federalist point of view, taking the extreme step of expanding federal law further into a states' police power by enacting a strong version of the Amendment may be premature regardless of whether DOMA is constitutional. The Supreme Court has long recognized a "public policy exception" to the Full Faith and Credit clause. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements 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), civil judgments and orders, criminal conviction and others.

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.

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DOMA and state legislation

Opponents of same-sex marriage reject the claim and assert that DOMA and the "public policy exception" to the Full Faith and Credit clause allow states to reject another state's recognition of same-sex marriage. Opponents feel that the issue should be decided more democratically through the legislative process rather than the non-democratic, judicial process. Thus, many opponents regard efforts to have same-sex marriages recognized by the federal courts as a way of evading the legislative process against the will of the majority of Americans. Gay rights advocates, however, feel that the democratic process is denying them a fundamental right and that since one of the purposes of the judiciary in the United States governmental system of checks and balances is to protect the fundamental rights of minority groups against the tyranny of the majority, they believe the judiciary should strike down gender restrictive marriage laws the same way they struck down racially restrictive marriage laws.

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

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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." [1]

Critics of DOMA argue that the law is unconstitutional on several grounds including:

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 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 has yet issued licences for same-sex marriages as of 2004.

The city of San Francisco began issuing marriage licenses to same-sex couples in February 2004, but stopped doing so soon thereafter, in compliance with a preliminary injunction issued by the Supreme Court of California which declared the licences invalid later that year.

Some states have proactively, by legislation or referendum, determined that they will not recognize same-sex marriages.

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 which would override any possible application of the Full Faith and Credit clause to same-sex partnerships, marriages or civil unions in other states. It would also prevent any state from legalizing same-sex marriages entered into within the state.

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." [2]

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