"Defense of marriage acts" (DOMA)

Passage of the federal DOMA law in 1996

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U.S. Federal Government "DOMA" Law

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 includes a clause that is supposed to excuse 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 (SSM) in that state. 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 in this web 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."

"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 (SSMs) 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. They 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 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 be free to marry a man.

Congressman John Lewis (D, GA) delivered a moving speech in the House in opposition to DOMA.

The bill passed the House with an overwhelming majority (342 to 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 first 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 the District of Columbia and a growing number 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 made no economic sense, because if were are recognized as married, they would have to pay the "marriage penalty" --  income taxes. However, marriage was sufficiently important to them that it overruled the economic disadvantage. They and other couples were unsuccessful. ₂

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. 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.
2. Terry Phillips, "Same-sex couples take on the IRS," Family News in Focus, 2004-MAY-26, at: http://www.family.org/

Copyright © 1995 to 2011 by Ontario Consultants on Religious Tolerance
Originally written: 1995-SEP-11
Latest update: 2012-NOV-27
Author: B.A. Robinson

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