During 1996, a "Defense of Marriage Act (DOMA)" was written by Representative Steve
Largent (R-OK). It defines the term marriage within Federal law as meaning "only
a legal union between one man and one woman as husband and wife." The act also
excuses each state from having to follow the "full faith and credit"
clause of the US constitution; this would allow a state to refuse to recognize a marriage
made in another state if the spouses were of the same gender. A similar bill, S. 1740, was
introduced to the Senate on 1996-MAY-8 by Senator Don Nickles (R-OK).
The bill was triggered by a decision of the Hawaiian Supreme Court that led
to a legalization of same-sex marriage in Hawaii. It lasted such a short
interval that no same-sex couples were able to get married. Still, many members of Congress
wanted to prevent same-sex marriage from proceeding anywhere in the U.S. in the future.
It is ironic that one of the main supporters of the bill, Senator Phil Gramm (R-TX),
would have been prohibited from marrying his wife a few decades previously by almost identical
legislation. His wife is partly of Korean ancestry; Phil Gramm is Caucasian. As described
elsewhere on our site, inter-racial marriages were prohibited in many states of the US as late as 1967
when all such laws were declared unconstitutional by the U.S. Supreme Court in
the ironically titled case: "Loving vs. Virginia."
Senator Jesse Helms (NC) warned that "the homosexual lobby," was
trying to "force their agenda upon the vast majority of Americans" and
was "willing to tear apart America's moral fabric." This is factually
incorrect. The major gay and lesbian organizations had originally felt that the right to enter into
same-sex marriages should not be pursued until after other rights (e.g.
protection in employment, protection in accommodation,
protection from hate crimes, etc) had first been obtained. The Hawai'ian group fought
the matter through the courts did so with little financial support from mainland
homosexual organizations, and ended up deeply in debt.
The federal DOMA act is a unique intrusion by the federal government into an area that had always
been under the control of the individual states. The Anchorage News (Reference 1)
commented:
"... scholars also questioned the federal government's authority under the
Constitution to pick and choose which state laws must be honored by other states. If
Congress can nullify one state's marriage laws, the scholars pointed out, it's presumably
free to void a state's tort laws, or product liability laws, or any other laws with
interstate implications. It's not clear whether any law in any state would be safe from
this kind of congressional nullification."
DOMA could also legalize bigamy in the United States. A bisexual woman could go to
a state in which same-sex marriage was legal and
marry another woman. She could move to another state, where she would be considered
single, and free to marry a man.
The bill passed the House with an overwhelming majority (342-67) in 1996-JUL. It passed
the Senate 85 to 14 on 1996-SEP-10. It was signed into law by President Clinton
during
1996-SEP. It he had not signed it, his veto would almost certainly have been overturned by
Congress.
Many, perhaps most, constitutional experts believe that the law could not
survive a court challenge before the U.S. Supreme Court, unless the court
becomes packed with more strict constructionists. Before a court case can
be initiated, gays and lesbians had to achieve equal marriage rights in
at least one state. This first happened in the state of Massachusetts where the Supreme Judicial Court
ordered that marriage
licenses be sold to same-sex couples starting in 2004-MAY-20. It has since
spread to a handful of other states.
A couple married
in Massachusetts in late 2004-MAY, returned to their home in Minnesota, and launched a lawsuit
with the U.S. District Court to force the IRS to change their tax return to
reflect their new status: "married, filing jointly." This makes no
economic sense, because if were are recognized as married, they would have to pay
the "marriage penalty" -- increased income taxes. However,
marriage was sufficiently important to them that it overruled the economic
disadvantage. They and other couples were unsuccessful. 4
Sponsored link:
2003-SEP: Federal DOMA revisited:
Senator John Cornyn (R-TX) opened a Senate hearing on 2003-SEP-4 to review
the federal DOMA law. In the seven years since DOMA was written, there has been
a growing consensus among social and religious conservatives that the law could
not survive a constitutional challenge. It appears to conflict with the Article IV, Section 1 of the US Constitution
-- the "full faith and credit" clause. In any conflict between
a law and a Constitution, the Constitution rules.
The only long-term approach to
banning same-sex marriage may be to modify the U.S. Constitution itself. A Federal Marriage Amendment has been proposed
that would restrict marriage to a union of one man and one woman. The current
wording of the proposed amendment states:
"Marriage in the United States shall
consist only of the union of a man and a woman. Neither this Constitution or
the constitution of any state, nor state or federal law, shall be construed to
require that marital status or the legal incidents thereof be conferred upon
unmarried couples or groups. ... federal DOMA makes it clear that states have
the right to regulate marriage within their borders and that they cannot be
forced to recognize same-sex 'marriages' from some other states. If federal DOMA
were to be struck down, that whole area of the law would be in jeopardy."
However, even if this amendment were passed by the Senate, House, and a
sufficient number of states, it will not necessarily be permanent. Any amendment
can be repealed. There is a growing acceptance of sexual minorities in the U.S.:
Polls
indicate that youth are far more accepting of same-sex marriage than are the
elderly.
An increasing number of gays, lesbians, and bisexuals are coming out of
"the closet" and going public with their sexual orientation.
These two factors, and perhaps others, are gradually swaying
public support for same-sex marriage. When young adults mature and enter positions of power, they might well
initiate a repeal of the Amendment, thus permitting same-sex marriage. If
current trends continue, among American voters with an opinion on SSM, the
majority will be supportive early in the 2010s.
2009-AUG-17: Anti-DOMA brief filed by Justice Department:
Scott Simpson, a federal Justice Department lawyer, filed an anti-DOMA brief. It
states that the Obama administration: "...does not support DOMA as a matter of
policy... [and] believes that the Act is discriminatory and should be repealed
by Congress."
President Obama has issued a written statement saying that he has "... long
held that DOMA prevents LGBT couples from being granted equal rights and
benefits." LGBT is an acronym referring to lesbian, gay, bisexual, and
transgendered persons.
Reaction from religious and social conservatives was as expected:
Bishop Harry Jackson, Jr., chairman of the High
Impact Leadership Coalition, describes the Justice Department brief as:
"an assault on biblical, God-ordained marriage. ... Evidently the president
signaled to us during the Stonewall celebration, when he had all of the gay
activists into the White House and made presentations of what he would do for
them, that he values this constituency and he is responding to their urging to
accelerate the process of redefining marriage. So, I think it is very
hypocritical on his part. I'm very outraged."
It is not clear how President Obama's consistent stance towards same-sex
marriage and DOMA is being "hypocritical."
Jackson rejects the beliefs that:
Same-sex marriage is a civil rights issue, and
Opposition to same-sex marriage is the moral equivalent of racism.
Brian Raum of the Alliance Defense Fund, a fundamentalist Christian legal
defense organization stated:
"It's really troubling that the federal government has taken a position that
federal policy is bad policy. Federal DOMA was passed
overwhelmingly and represents the prevailing view of the people of the United
States that marriage is between a man and a woman and that's the optimal
environment for raising kids."
We seem to be seeing a replication of the interracial marriage conflict of
the late 20th century:
In 1948, about 90% of American adults
opposed interracial marriage. In that year, the Supreme Court of California
legalized it.
In 1967. 16 states still had anti-miscegenation laws in place that banned
inter-racial marriage. 72% of American adults still opposed interracial
marriage. In that year, the U.S. Supreme Court legalized interracial marriage everywhere in the
U.S., in an ironically named case: Loving v. Virginia.
Most American adults were opposed to interracial marriage until 1991.
Since then, most adults have favored the redefinition of marriage to admit
interracial couples.
The fundamental question to be answered about DOMA is whether the
"prevailing view of the people of the United States" should rule, or whether
the U.S. Constitution's guarantee of equal treatment for all citizens should
rule. That is, should the U.S. be ruled by the tyranny of the majority or by
its Constitution. Since every American is a member of at least one minority, a
case can be made that the Constitution should rule, or the civil rights of all
are in jeopardy.
One News Now, a fundamentalist Christian news source from American
Family News Network, has been following the same notation as other social and
religious conservative information sources. When referring to same-sex
marriage, they place the word marriage in quotation marks to indicate their
denigration of the concept. In their report on 2009-AUG-18 on the Justice
Department's anti-DOMA brief, they dropped the quotation marks in three
locations. They also dropped the quotation marks in one location where they
referred to homosexual marriages. It is not clear whether this is a typo, or a
change in policy to recognize marriage equality. We suspect it is a typo.
References used:
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
A listing of activity on a state by state basis is available at: http://www.ftm.org/
It does not seem to have been updated recently.
A frequently updated activity list is at the Lambda Legal Defense and
Education Fund at: http://www.lambdalegal.org/
Sonja Swiatkiewicz, "Connecticut Attempts to Protect Marriage,"
Focus on the Family, 2003-FEB-21, at:
http://www.family.org/
Terry Phillips, "Same-sex couples take on the IRS," Family News
in Focus, 2004-MAY-26, at:
http://www.family.org/
The text of the case Citizens for Equal Protection, Nebraska Advocates
for Justice and Equality and ACLU Nebraska v. Jon Bruning and Mochael Johanns
is at:
http://www.lambdalegal.org/
"50-state survey of marriage protection amendments," Traditional
Values Coalition, 2005-APR, at:
http://www.traditionalvalues.org/ This is a PDF file. You may require software to read it. Software can be obtained free from:
Jim Brown & Charlie Butts, "Obama follows through, files to repeal DOMA,"
One News Now, 2009-AUG-18, at:
http://www.onenewsnow.com/
