"Defense of marriage acts" (DOMA)
How effective are DOMA laws
and constitutional changes?
Would the lack of DOMA laws cause automatic
recognitions of SSMs?
Article IV, Section 1 of the U.S. Constitution states that "full faith and
credit shall be given in each state to the...judicial proceedings of every other
state." Thus, if one state legalizes same-sex marriages (SSM), and a couple
is married in that state, then the remaining 49 states might be required to
recognize that marriage.
Notwithstanding the "full faith and credit" clause, it is
unlikely that many states would willingly recognize same-sex marriages
contracted in other states, unless ordered to by the courts.
There was an analogous situation that existed until 1967 concerning inter-racial
marriage. Many states at the time refused to recognize any mixed race
marriages that were legally solemnized in other states. Couples had to fight for
their rights on a state-by-state basis. In 1967, the U.S. Supreme Court issued
its ruling in the Loving v. Virginia; they declared that the Virginia
miscegenation law and similar laws by 14 other states to be unconstitutional.
None of the challenges to state DOMA laws have been successful to date.
How effective are state DOMA laws?
There are three reasons why many of the state DOMA bills may be
partly or completely ineffectual:
Out-of state civil unions: Most of the early DOMA laws specifically refer to the refusal of the
state to recognize gay/lesbian marriages contracted in another
state. That was because the state lawmakers were reacting to activities in
Hawaii and Alaska in which minor modifications to their marriage acts
would have allowed both homosexuals and heterosexuals to marry. But since Vermont's
civil union legislation has been enacted, gays and lesbians
are now able to enter into "civil unions." Most of the early DOMA bills and acts refer
only to SSMs. Many of the DOMAs don't mention civil unions or domestic
partnerships. So lesbian and gay couples might be able
to travel to Vermont, enter into a civil union, return to their home state
and ask that their union be recognized. A DOMA law might offer some
protection to a state who wants to refuse to recognize a same-sex marriage
contracted in another state, but it might not offer any protection against
existing civil unions.
In-state civil unions: Most early DOMAs did not prevent a
state from creating equivalent-to-marriage civil union or domestic partnerships legislation at some time
in the future, as was done in Vermont. However, some states passed
laws to plug this loophole. Connecticut House Bill 5356, called the Act
Concerning Marriage, define marriage as only a union of one man and
one woman, like other DOMA laws. Further, it prohibited any other relationship
from being recognized as a marriage or given the benefits of marriage in the
They may be unconstitutional. Many of the DOMA laws are promoted as
prohibiting both SSM and same-sex civil unions. However, either through carelessness or
stealth, they are actually written to have a far greater scope. They often
prevent same-sex couples from attaining elementary human rights, such as the
rights to visit their partner in hospital, to make health-care decisions for
their partner, etc. In its 1996 decision, Romer v. Evans, the U.S. Supreme
Court ruled on laws which identify
"...persons by a single trait and then
denies them protection across the board." This leads to "disqualification
of a class of persons from the right to seek specific protections from the
The court ruled that this is a violation of the Equal Protection
clause of the U.S. Constitution. 2
In 2005-MAY, the Nebraska DOMA law was declared
unconstitutional by a state court. 3
Other state DOMA laws may be similarly overthrown.
They can be repealed: The main reason for the ineffectiveness of
state DOMA laws is that they are simply pieces of legislation. Thus the
legislature can repeal them at any time. During early 2009 when Vermont, New
Hampshire and Maine all legalized SSM, the state legislatures
simply contained a clause to the SSM bill that repealed the state DOMA law.
Preventing SSM by changing the state constitution:
By writing discrimination into the state constitution, religious and social
conservatives can prevent legislatures and state courts from repealing -- or
declaring unconstitutional -- state DOMA laws. It puts SSM out of reach. This
approach has been promoted by many conservatives and conservative groups as
permanently preventing SSM in their state.
However, changing the constitution does not necessarily prevent SSMs for all
time. If the legislature and voters of a state can write discrimination into
their constitution, they can also remove it at some time in the future,
if support for SSM continues to increase. Also,
there is the possibility that the U.S. Supreme Court might declare some or all
DOMA constitutional amendments to be unconstitutional as they did over
inter-racial marriages in 1967.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Sonja Swiatkiewicz, "Connecticut Attempts to Protect Marriage,"
Focus on the Family, 2003-FEB-21, at:
The text of the U.S. Supreme Court 1996 ruling in "Romer v. Evans,"
The text of the case Citizens for Equal Protection, Nebraska Advocates
for Justice and Equality and ACLU Nebraska v. Jon Bruning and Mochael Johanns
Copyright © 1995 to 2009 by Ontario
Consultants on Religious Tolerance
Originally written: 1995-SEP-11
Latest update: 2009-JUN-17
Author: B.A. Robinson