Defense of Marriage Act

Legislation

By: United States Congress

Date: January 3, 1996

Source: Government Printing Office. "Defense of Marriage Act." 〈http://frwebgate.access.gpo.gov/〉 (accessed June 10, 2006).

About the Author: The United States Congress is the law-making branch of the federal government. The Defense of Marriage Act was introduced by the 104th Congress at its second session.

INTRODUCTION

For much of U.S. history, most American families fit a similar template, consisting of a married couple and their biological children. In this arrangement the husband was the sole or primary income earner while the wife managed the house and cared for the children. The fictional Ward and June Cleaver household in the 1950's television show Leave It to Beaver portrayed a prototypical American family. But while the Cleaver household may not have been the norm even in the 1950's, many families of that era did resemble them, at least outwardly.

By 1990, this traditional American family was no longer the predominant household form. According to the census conducted that year households resembling the Cleavers accounted for only 16% of the total. As young people delayed marriage, more homes consisted of singles, while the growing acceptance of cohabitation led to more unmarried couples. Climbing divorce rates produced more single-parent homes, and remarriages produced blended homes combining members of several families into a new unit.

During this era homosexual rights also became a major political issue. Throughout the 1980's and 1990's, federal courts heard cases challenging state anti-sodomy laws, and several states passed legislation protecting gay rights. In 1991, three same-sex couples in Hawaii challenged the state's refusal to grant them marriage licenses. After the case was appealed to the Hawaii Supreme Court, conservative groups nationwide became concerned that the court might rule in favor of gay marriage. Their concern arose from a basic principle of federal law that requires states to recognize each other's marriages and court-authorized actions. Under this doctrine, same-sex marriages performed in Hawaii could be considered binding in other states as well.

Facing the possibility of legalized gay marriage in Hawaii, members of Congress proposed a new federal law that would limit the impact of any potential ruling in Hawaii. The act legally defined marriage as a union between one man and one woman; it also allowed each state to decide individually whether or not to recognize same-sex unions, regardless of what other states might allow. The act quickly made its way through both houses of Congress, where sponsors described it as making explicit what federal law had implied for two centuries; President Clinton signed the act into law in 1996.

PRIMARY SOURCE

H.R.3396

           One Hundred Fourth Congress of the United States of America

              at the second session

     Begun and held at the City of Washington on Wednesday, the third day of January, one thousand nine hundred and ninety-six.

                           An Act

To define and protect the institution of marriage.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

section 1. short title.

This Act may be cited as the "Defense of Marriage Act."

sec. 2. powers reserved to the states.

(a) in general.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:

§ 1738C. Certain acts, records, and proceedings and the effect thereof

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.

(b) Clerical Amendment—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:

1738C. Certain acts, records, and proceedings and the effect thereof.

sec. 3. definition of marriage.

(a) In General.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

§ 7. 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.

(b) Clerical Amendment.—The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:

7. Definition of 'marriage' and 'spouse'.

                 Speaker of the House of Representatives.

                  Vice President of the United States and President of the Senate.

SIGNIFICANCE

In 1994, the Hawaiian state legislature passed a law defining marriage as a union between a man and a woman, and in 1998 that state's voters approved a state constitutional amendment defining marriage as a man-woman union. The state Supreme Court upheld this amendment in 1999.

At the federal level opponents of the Defense of Marriage Act raised several objections to the law, arguing that its scope is beyond Congress's authority and that it violates the Constitution's pledge of equal protection. Court challenges to the law in the years since its passage, however, have proven unsuccessful. A majority of states have also passed individual versions of the Defense of Marriage Act.

In 2000, Vermont became the first state to officially recognize same-sex civil unions, granting these partners the same legal rights and privileges accorded to heterosexual spouses. In 2004 the mayor of San Francisco authorized city clerks to issue marriage licenses to same-sex couples, despite a 2000 California referendum defining marriage as a heterosexual union; the state Supreme Court quickly moved to stop such issuance. That same year the Massachusetts Supreme Court ruled that civil unions were inadequate to provide equal rights for gays, effectively legalizing gay marriage in the state.

By 2006, most states had taken legal action to regulate same-sex marriage. Massachusetts was the only state allowing gay marriage, though pending court rulings offered the potential for similar rights in New Jersey, New York, and Washington. Connecticut and Vermont were the only states to recognize same-sex civil unions, while forty-one states had enacted laws prohibiting same-sex marriages and eighteen had added the same prohibition to their state constitutions. In 2006, the U.S. House of Representatives passed a proposed constitutional amendment defining marriage as a heterosexual union. The proposal failed to pass the Senate.

FURTHER RESOURCES

Books

Gerstmann, Evan. Same-Sex Marriage and the Constitution. Cambridge University Press, 2004.

Pinello, Daniel. Gay Rights and American Law. Cambridge, England, and New York: Cambridge University Press, 2003.

Richards, David. The Case for Gay Rights: From Bowers to Lawrence and Beyond. Lawrence, KS: The University Press of Kansas, 2005.

Periodicals

Johnson, Kirk. "4 Proposals on Same-Sex Unions Compete for Favor of Coloradans." New York Times. 155 (May 7, 2006): A24.

Kokoski, Paul. "Cheers and Jeers for the Proposed Gay-Marriage ban." Christian Science Monitor. 98 (2006): 8.

Rosenberg, Debra, et al. "Politics of the Altar." Newsweek. 147 (2006): 34-35.

Web sites

Associated Press. "Mass. Lawmakers Don't Address Gay Marriage." July 12, 2006 〈http://hosted.ap.org/dynamic/stories/〉 (accessed July 11, 2006).

DOMA Watch. "Your Legal Source for Defense of Marriage Acts Information." 〈http://www.domawatch.org/index.html〉 (accessed June 15, 2006).

Stateline. "50-state Rundown on Gay Marriage Laws." November 3, 2004 〈http://www.stateline.org/live/〉 (accessed June 15, 2006).

Defense of Marriage Act (1996)

Andrew Koppelman

Excerpt from the Defense of Marriage Act

In determining the meaning of any Act of Congress, or of any ruling, regulation, or inter pretation 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 wife.

The choice of law provision

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.

The Defense of Marriage Act (DOMA) (P.L. 104-199; 110 Stat. 2419) denies federal recognition to same-sex marriages and authorizes the states to deny such recognition as well. The act has two provisions. One of these defines marriage, for federal purposes, as exclusively heterosexual, thereby depriving same-sex couples of all the federal benefits to which other married couples are entitled. The other provision authorizes individual states to ignore same-sex marriages when they are performed in other states.

The constitutional basis for the provision that defines marriage is simply Congress's power to define the terms of a federal statute. The second provision relies on the "full faith and credit clause" of Article IV, sec. 1, of the U.S. Constitution. This clause, after requiring states to give "full faith and credit" to one another's acts and judicial proceedings, provides that "Congress may by General Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

DOMA was enacted after a 1993 decision by the Hawaii Supreme Court strongly suggested that the state would make same-sex marriage legal. (After DOMA was enacted, the state court's decision was overturned by an amendment to the state constitution.) States usually recognize marriages celebrated in other states, and the federal government usually defers to each state's definition of marriage. But neither of these rules has been understood to be a constitutional requirement. Opponents of same-sex marriage feared that recognition of same-sex marriage would damage the institution of marriage in the United States, and so sought, through DOMA, to create an exception to these ordinary rules. Those who opposed DOMA, noting the unprecedented nature of the federal legislation, thought that it was an unconstitutional abuse of the Article IV power. These opponents emphasized that Congress was responding to a "problem" that did not exist, since no state then recognized same-sex marriages.

DOMA has played an important role in state courts since Vermont recognized the legality of same-sex unions. Vermont Civil Unions, created by statute in 2000, have all the rights and responsibilities of marriage without the name. State courts have cited DOMA when denying recognition to Vermont Civil Unions. For example, Lofton v. Kearney, a 2001 Florida ruling, states that DOMA "precludes homosexuals who marry in other states from being recognized by Florida as a legal union."

Citations such as these, however, appear to rest on an error of law. The full faith and credit clause has never been interpreted to require states to recognize marriages celebrated in other states that are contrary to the public policy of the particular state. DOMA is, in fact, irrelevant to almost any question that is likely to come before a court. The Supreme Court has interpreted the full faith and credit clause to constrain state courts only when the state would violate parties' due process rights by applying its own law to the case.

The Defense of Marriage Act is one episode in a continuing cultural and political battle over the status of same-sex couples. Republican Senator Don Nickles of Oklahoma, one of the original sponsors of DOMA, argued that, because marriage is already traditionally understood to be exclusively heterosexual, the law "merely reaffirm[s] what is already known, what is already in place" (Committee on the Judiciary, U.S. Senate, 104th Cong., 2d Sess., Hearing on Defense of Marriage Act, July 11, 1996). Opponents argue that, if the exclusive heterosexuality of marriage were that obvious, there would have been no need for the statute.

BIBLIOGRAPHY

Koppelman, Andrew. "Dumb and DOMA: Why the Defense of Marriage Act Is Unconstitutional." Iowa Law Review 83, no. 1 (1997): 94–140.

Koppelman, Andrew. The Gay Rights Question in Contemporary American Law. Chicago: University of Chicago Press, 2002.

DEFENSE OF MARRIAGE ACT

DEFENSE OF MARRIAGE ACT. President Bill Clinton signed the Defense of Marriage Act (Public Law 104-199) at 12:50 a.m. on 21 September 1996. It permitted any state to refuse recognition to any same-sex marriage performed in any other state. It also defined "marriage" as exclusively the union of one man and one woman for all purposes under federal law. Clinton signed it almost surreptitiously because he had won considerable lesbian/gay support in 1992 and hoped to do so again in 1996, but he feared the political cost of not opposing same-sex marriages.

A gay couple in Minneapolis first challenged the prohibition on same-sex marriages in 1970. Courts routinely dismissed such cases until 1993, when the Hawaii state supreme court, in Baehr v. Levin, found that denial of marriage licenses to same-sex couples violated the state constitutional prohibition on discrimination on the basis of sex. Along with similar decisions in Alaska and Vermont, the Hawaii case led conservative activists to push for state laws prohibiting recognition of same-sex marriages.

The federal law reflected both conservative opposition to same-sex marriages and Republicans' desire to create political problems for President Clinton during an election year. The Defense of Marriage Act remains controversial, as lesbian/gay civil rights activists continue to push for same-sex marriage.

BIBLIOGRAPHY

Cain, Patricia A. Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement. Boulder, Colo.: Westview, 2000.

Chambers, David L. "Couples: Marriage, Civil Union, and Domestic Partnership." In Creating Change: Sexuality, Public Policy, and Civil Rights. Edited by John D'Emilio, William B. Turner, and Urvashi Vaid. New York: St. Martin's, 2000.

Eskridge, William L. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, Mass.: Harvard University Press, 1999.

William B.Turner

See alsoGay and Lesbian Movement .