| Acronym | DOMA |
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| Enacted by the | 104th United States Congress |
| Citations | |
| Public Law | 104-199 |
| Stat. | 110 Stat. 2419 (1996) |
| Codification | |
| U.S.C. sections created | 28 U.S.C. § 1738C, 1 U.S.C. § 7 |
| Legislative history | |
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| Major amendments | |
| Relevant Supreme Court cases | |
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The Defense of Marriage Act (DOMA) (Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) is a United States federal law whereby the federal government defines marriage as a legal union between one man and one woman. Under the law, no U.S. state (or other political subdivision) may be required to recognize as a marriage a same-sex relationship considered a marriage in another state. The law passed both houses of Congress by large majorities and was signed into law by President Bill Clinton on September 21, 1996.
The law, specifically Section 3, codifies an irrecognition of same-sex marriage for all federal purposes, which include family insurance benefits for employees of the government, survivors' benefits from Social Security, and joint tax filings. This section has been found unconstitutional in two Massachusetts court cases and a California bankruptcy court case; however, the court rulings are under appeal. Parts of the act have also been deemed unconstitutional by the Barack Obama administration, which announced in 2011 that while they will enforce DOMA, they will not defend it in court.[1]
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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.
Section 3 of the law—the part that defines marriage for federal purposes as the union of a man and a woman—was ruled unconstitutional by a federal district court judge in July 2010.[2][3] This decision was appealed in October 2010.[4] On February 23, 2011, Attorney General Eric Holder announced that the Justice Department would cease legal defense of the Act's Section 3 at the direction of President Barack Obama, who had reached a conclusion that Section 3 was unconstitutional.[5] However, Congress may defend the law in court in place of the administration, and on March 4, 2011, Speaker of the House John Boehner announced he was taking steps to defend Section 3 in place of the Department of Justice.[6] Additionally, the administration intends to enforce the law "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."[7]
The following excerpts are the main provisions of the Act:[8]
DOMA's Section 3 prevents the federal government from recognizing the validity of same-sex marriages. The General Accounting Office issued a report in 1997 identifying "1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor".[9] In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003.[10]
Mainstream psychological, psychiatric, medical, pediatric, and social work professional associations assert that scientific evidence contravenes the stereotype-based rationales that were advanced to support passage of DOMA and shows that federal government discrimination between same- and opposite-sex married couples harms same-sex married couples and their children.[11]
Bi-national same-sex couples are kept from legally living in the United States by DOMA's Section 3, which prevents one spouse from sponsoring the other for a green card.[12] Following some uncertainty after the Obama Administration determined Section 3 to be unconstitutional, the Bureau of Citizenship and Immigration Services reaffirmed its policy of denying such applications.[13] With respect to obtaining a visitor's visa, Bureau rules treat bi-national same-sex spouses the same as bi-national opposite-sex unmarried partners under the classification "cohabiting partners".[14]
Tim Coco and Genesio J. Oliveira, a same-sex couple married in Massachusetts in 2005, successfully challenged this policy and developed a model since followed by other immigration activists.[15] The U.S. refused to recognize their marriage and in 2007 Oliveira, a Brazilian national, accepted "voluntary departure" and returned to Brazil. They conducted a national press campaign[16][17] that won the attention of Senator John F. Kerry, who first lobbied Attorney General Eric H. Holder Jr.[18] without success. He then gained the support of United States Department of Homeland Security Secretary Janet Napolitano who granted Oliveira humanitarian parole, enabling the couple to reunite in the U.S. in June 2010.[19] Humanitarian parole is granted on a case-by-case basis at the Secretary's discretion.[20]
In the 1993 case Baehr v. Miike[21] the Supreme Court of Hawaii ruled that the state must show a compelling interest in prohibiting same-sex marriage. This prompted concern among opponents of same-sex marriage that same-sex marriage might become legal in Hawaii and that other states would recognize those marriages. The Defense of Marriage Act was intended to free states from any obligation to recognize the marriage of same-sex couples in other states.
Georgia Representative Bob Barr, then a Republican, authored the Defense of Marriage Act and introduced it on May 7, 1996. 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."[22] 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 the full faith and credit each state must grant to other states' acts. 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.
The 1996 Republican Party platform endorsed DOMA, referencing only Section 2 of the Act: "We reject the distortion of [anti-discrimination] laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions."[23] The Democratic Party platform that year did not mention DOMA or marriage.[24]
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."[25] He did not mention the issue in his 2004 autobiography.[26] Over time, Clinton's personal views on same-sex marriage shifted. In July 2009, he 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]."[27] Clinton added that he personally supports same-sex marriage but does not believe it is a "federal question", stating, "I think all these states that do it should do it."[28]
The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress, passing by a vote of 85–14 in the Senate[29] and a vote of 342–67 in the House of Representatives.[30] It was signed into law by President Bill Clinton on September 21, 1996.
Since the enactment of DOMA, several states have issued licenses for same-sex marriages: Iowa,[31] California, Connecticut, Vermont, New Hampshire, Massachusetts, the District of Columbia, and New York.
The 2000 Republican Party platform endorsed DOMA in general terms but introduced a concern about possible judicial action: "We support the traditional definition of 'marriage' as the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages.[32] The Democratic Party platform that year did not mention DOMA or marriage in this context.[33]
In 2008, Congressman Barr apologized for having sponsored DOMA and said he thought it should be repealed,[34] saying it violates the principles of federalism.[35]
President Barack Obama's political platform included full repeal of DOMA.[36][37] 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 in line with its longstanding practice of defending all federal laws challenged in court.[38] This action drew scorn from some organizations in favor of same-sex marriage, such as the Human Rights Campaign and the Empowering Spirits Foundation, with a heavy focus on the brief's specific arguments.[39][40] 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."[41] On February 23, 2011, Attorney General Eric Holder announced that the Justice Department would cease legal defense of the Act's Section 3 at the direction of President Barack Obama, who had concluded that Section 3 was unconstitutional.[5] In a separate letter to House Speaker Boehner, Holder noted that Congress will still have an opportunity to participate in these lawsuits in the Department of Justice's absence.[42]
On September 15, 2009, three Democratic members of Congress, Jerrold Nadler of New York, Tammy Baldwin of Wisconsin, and Jared Polis of Colorado, introduced legislation to repeal DOMA called the Respect for Marriage Act. The bill had 91 original co-sponsors in the House of Representatives.[43][44] However, Congressman Barney Frank and John Berry, head of the Office of Personnel Management, did not support that effort, stating that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management filed by Gay & Lesbian Advocates & Defenders.[45][46]
On February 23, 2011, following Attorney General Eric Holder's announcement that the Obama Administration would no longer defend DOMA Section 3 in court, Senator Dianne Feinstein announced her intent to introduce legislation in the Senate Judiciary Committee to repeal DOMA.[47] On March 16, 2011, the Respect for Marriage Act was re-introduced in both houses during the 112th Congress. The House version was introduced by Nadler,[48] and the Senate version by Feinstein.[49] The Senate Judiciary Committee voted 10-8 in favor of advancing the bill to the Senate floor, where it would require 60 votes in order to end a potential fillibuster.[50]
DOMA’s two effective sections raise separate constitutional issues.
Section 2 of DOMA explicitly addresses the constitutional requirement expressed in the Full Faith and Credit Clause in Article IV Section 1 of the United States Constitution, quoting its language directly. That clause establishes that the states have certain reciprocal obligations to one another, specifically to recognize each other's "public Acts, Records, and judicial Proceedings."[51] That same section of the Constitution gives Congress the authority to legislate on the question of those obligations. Section 2 of DOMA excludes same-sex marriages from the state "acts" that any other state needs to recognize.
Section 3 of DOMA defining "marriage" and "spouse" for federal purposes raises a more extensive variety of constitutional issues. On February 23, 2011, Attorney General Eric Holder and President Obama announced their conclusion that "a more heightened standard of scrutiny" is necessary for sexuality-based classifications and consequently that DOMA Section 3 is unconstitutional.[5]
Early challenges to DOMA in federal courts failed. They included, for example, an attempt by a same-sex couple in the state of Washington, married in Canada, to file a joint bankruptcy petition,[52] and an attempt by a Florida same-sex couple, married in Massachusetts, to have their marriage license accepted in Florida.[53]
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.[54] 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.
Golinski v. Office of Personnel Management, No. 10-00257 (N.D. Cal.), began in an employment dispute resolution tribunal and then became a challenge to DOMA in federal court. In 2008, Karen Golinski, a 19-year employee of the Ninth Circuit Court of Appeals, applied for health benefits for her spouse. When that application was denied, she filed a complaint under the Ninth Circuit's Employment Dispute Resolution Plan. Chief Judge Alex Kozinski ruled in 2009 that she was entitled to spousal health benefits,[55] but the Office of Personnel Management announced that it would not comply with the ruling. In January 2010, Lambda Legal filed suit against the federal government in the U.S. District Court for the Northern District of California, in accordance with the terms of the Employment Dispute Resolution Plan.[56] On March 17, 2011, U.S. District Judge Jeffrey S. White dismissed the suit on procedural grounds, but invited the plaintiffs to amend their suit to argue the unconstitutionality of DOMA Section 3,[57] which they did on April 14.[58] On May 3, 2011, on behalf of the Bipartisan Legal Advisory Group (BLAG), former United States Solicitor General Paul Clement filed a motion to dismiss, raising arguments previously avoided by the Department of Justice that DOMA's definition of marriage is valid "because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children."[59] On July 1, 2011, the DOJ filed a brief in support of Golinski's suit, in which it detailed for the first time its case for heightened scrutiny based on "a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities" and its arguments that DOMA Section 3 fails to meet that standard.[60]
A September 20, 2011, letter from New York archbishop Timothy Dolan, which included a three-page analysis by the U.S. Conference of Catholic Bishops, cited the brief as evidence that the DOJ "has shifted … to actively attacking DOMA's constitutionality". Dolan predicted current federal actions would "precipitate a national conflict between church and state of enormous proportions and to the detriment of both institutions."[61]
In February 2004, Arthur Smelt and Christopher Hammer sued Orange County, California, in federal court for refusing to issue them a marriage license. The district court ruled that the couple did not have standing to challenge Section 2 of DOMA and rejected their challenge to the constitutionality of Section 3. On May 5, 2006, the United States Court of Appeals for the Ninth Circuit dismissed the suit,[62] and on October 10 the United States Supreme Court refused to consider the couple's appeal.[63] On March 9, 2009, the same couple, having legally married in California, filed another lawsuit, challenging the constitutionality of DOMA and California's Proposition 8.[64] District Judge David O. Carter dismissed the case on August 24, because the couple had not applied for and been denied any federal benefit and therefore lacked "an injury in fact."[65]
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.[66][67] On May 6, 2010, Judge Joseph L. Tauro heard arguments in the U.S. District Court in Boston.[68]
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."[69] 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.[2][3] 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.[4]
On November 3, 2011, 133 Democrats from the US House of Representatives filed an amicus brief in support of the plaintiffs in Gill and Massachusetts, asserting their belief that §3 of DOMA is unconstitutional.[70] Included among the members of Congress signing the amicus curiae were 14 members who had voted for the bill’s passage in 1996.[70]Seventy major employers have also filed an amicus brief supporting getting rid of DOMA.[71]
Two more suits were filed on November 9, 2010, in courts that are part of the Second Circuit, where no precedent exists for the standard of review to be followed in sexual-orientation discrimination cases.
GLAD filed Pedersen v. Office of Personnel Management in District Court in Connecticut making on behalf of same-sex couples in Connecticut, Vermont, and New Hampshire the same arguments it made in Gill.
The American Civil Liberties Union and the law firm Paul, Weiss, Rifkind, Wharton & Garrison filed Windsor v. United States in New York on behalf of a surviving same-sex spouse whose inheritance from her deceased spouse had been subject to federal taxation as if they were unmarried. [72][73] New York Attorney General Eric Schneiderman filed a brief supporting Windsor's claim on July 26, 2011.[74]
Other pending DOMA cases as of February 28, 2011, are:[75]
In May 2011, DOMA-based challenges by the Department of Justice to joint petitions for bankruptcy by married same-sex couples were denied in two cases, one in the Southern District of New York on May 4 and one in the Eastern District of California on May 31. Both rulings stressed practical considerations and avoided ruling on DOMA.[76]
On June 13, 2011, 20 of the 25 judges of the U.S. Bankruptcy Court for the Central District of California signed an opinion in the case in re Balas and Morales that found that a same-sex married couple filing for bankruptcy "have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled." The decision found DOMA Section 3 unconstitutional and dismissed the BLAG's objections to the joint filing. It said:[77]
Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors' right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors.
A spokesman for House Speaker Boehner said the Bipartisan Legal Advisory Group (BLAG) would not appeal the ruling,[78] though the United States Trustee for California later filed a motion for leave to appeal.[79]
On July 7, 2011, the DOJ announced that after consultation with the BLAG it will no longer raise objections to "bankruptcy petitions filed jointly by same-sex couples who are married under state law".[80]
On September 28, 2011, U.S. District Court Judge Stephen V. Wilson rejected a challenge against DOMA, citing Adams v. Howerton as binding precedent. The plaintiffs there challenged the denial of immediate relative status to the same-sex spouse of an American citizen.[81][82]
On February 23, 2011, Attorney General Eric Holder released a memo regarding two lawsuits challenging DOMA Section 3, Pedersen v. OPM and Windsor v. United States. He said, "After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases."[5] On February 24, the Department of Justice notified the First Circuit Court of Appeals that it will "cease to defend" Gill and Massachusetts as well.[83] On July 1, 2011, the DOJ, with a filing in Golinski, intervened for the first time on behalf of a plaintiff seeking to have DOMA Section 3 ruled unconstitutional, arguing that laws that use sexual orientation as a classification need to pass the court's strict scrutiny standard of review.[60] The DOJ made similar arguments in a filing in Gill on July 7.[84]
On March 4, 2011, Boehner announced plans to convene the BLAG to consider how the House of Representatives should defend DOMA Section 3 in place of the Department of Justice,[85] and on March 9 the committee voted 3-2 to do so.[86]
On April 18, 2011, House leaders announced they had picked former United States Solicitor General Paul Clement to represent the BLAG,[87] and Clement, without opposition from other parties to the case, filed a motion to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA.[88] On April 25, 2011, King & Spalding, the law firm through which Clement was handling the case, announced it was dropping the case. On the same day, Clement resigned from King & Spalding in protest and joined Bancroft PLLC, which took on the case.[89] The House's initial contract with Clement capped legal fees at $500,000,[90], but on September 30, a revised contract raised the cap to $1.5 million.[91] A spokesman for Boehner explained that the BLAG would not appeal in all cases, citing bankruptcy cases that are "unlikely to provide the path to the Supreme Court....[E]ffectively defending [DOMA] does not require the House to intervene in every case, especially when doing so would be prohibitively expensive."[79]
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.[92]
Only Connecticut,[93] Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia allow marriages between persons of the same sex. The California Supreme Court legalized same-sex marriage on June 16, 2008,[94] but on November 4, 2008, voters passed a constitutional amendment to restrict marriage to members of the opposite sex.[95] The amendment has since been declared unconstitutional in federal court, but same-sex marriages have not resumed in California because the case is still being appealed.[96]
New Mexico and Maryland recognize such marriages from other jurisdictions. Other states recognize such a marriage as a non-marriage relationship such as a civil union or domestic partnership (California,[97] Hawaii, Illinois,[98] Nevada 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).[99]
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, including Maine, which approved a same-sex marriage law that was repealed by referendum in the United States general elections, 2009.[92]
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