"Defense of marriage acts" (DOMA)

Attempts to have the courts declare the federal DOMA law unconstitutional

Sponsored link.

Background: U.S. Federal Government "DOMA" Law:

During 1996-SEP, the federal "Defense of Marriage Act (DOMA)" was signed into law by President Clinton. It restricts the term marriage within Federal law as meaning "only a legal union between one man and one woman as husband and wife." The act has two main effects:

	DOMA cuts off any access by same-sex married couples to the more than 1,100 federal benefits that are reserved as a special privilege for opposite-sex married couples. Same-sex couples can get married in some states, but these federal benefits are denied them.
	DOMA says that it 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 same-sex marriage legally made in another state. Whether this provision of DOMA is constitutional is debatable.

The law does not prevent same-sex marriages. It is still up to each state to define who it allows to marry. Any state can decide to:

	Allow same-sex couples to marry, or
	Allow them to enter a civil union or domestic partnership, or
	Not recognize their relationship at all -- as was the case in many states prior to 1968 for interracial couples -- and simply regard them as roommates without benefits and protections for themselves and their children.

2004: Initial attempt to overturn DOMA:

Before a court case could be initiated, gays and lesbians had to achieve the right to marry 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, mostly in New England.

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 they were recognized as married, they would have to pay the "marriage penalty" --  an increased level of income taxes. However, the concept of marriage was sufficiently important to them to overrule the economic disadvantage. Their lawsuit was unsuccessful. ₄

Other same-sex couples attempted similar lawsuits and failed as well.

2008: Senator Barak Obama supports repeal of DOMA law:

During his campaign for the presidency, Senator Barak Obama (D-IL) wrote an open letter concerning lesbian, gay, bisexual, transexual (LGBT) rights in the U.S. He said in part:

"I'm running for President to build an America that lives up to our founding promise of equality for all -- a promise that extends to our gay brothers and sisters. It's wrong to have millions of Americans living as second-class citizens in this nation. And I ask for your support in this election so that together we can bring about real change for all LGBT Americans. ..."

"I personally believe that civil unions represent the best way to secure that equal treatment. But I also believe that the federal government should not stand in the way of states that want to decide on their own how best to pursue equality for gay and lesbian couples -- whether that means a domestic partnership, a civil union, or a civil marriage. Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) -- a position I have held since before arriving in the U.S. Senate. While some say we should repeal only part of the law, I believe we should get rid of that statute altogether. Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does." ₁

2008-FEB: California couple attempts to overturn DOMA law:

A couple in California -- Arthur Smelt and Christopher Hammer -- were married before Proposition 8 terminated same-sex marriages in 2008-NOV. They sued the federal government in an attempt to overturn the DOMA law. The case is called Smelt v. United States. They claimed that the law violates their constitutionally-protected right to travel from state to state, their free speech rights, and their due process rights. 

2009-AUG-17: Anti-DOMA brief filed by Justice Department:

W. Scott Simpson, a federal Justice Department lawyer, filed an anti-DOMA brief in the Smelt v. United States case. It stated that:

"... this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal." ₁₀

The memorandum also stated that as long as DOMA is on the books, it is the responsibility of the executive branch of the Federal government to defend it.

FindLaw^? commented:

"Even in its arguments for dismissal, though, the administration's lawyers avoid supporting the substantive contents of the statute, and instead attack the suit on grounds of jurisdiction, standing and procedural defaults.  When the attorneys do address the validity of the statute itself, they raise notions of federalism to support it and explicitly distance the administration from the arguments of intervening parties that the government has a legitimate interest in encouraging 'responsible procreation'."

"This strategy is clearly meant to send a signal to gay rights groups that the administration still supports expanded rights for the gay community.  The only question now is: will the adminsitration's [sic] actions to dismiss the case speak louder than its words?" ₇

A number of Internet bloggers described Simpson, the Justice Department lawyer, as a holdover from the previous administration and a member of The Church of Jesus Christ of Latter-day Saints -- a Mormon. This personal information turned out to be in error, but it had spread widely throughout the Internet.

President Obama issued a written statement saying that he has

"... long held that DOMA prevents LGBT couples from being granted equal rights and benefits."

(LGBT. GLBT and various other versions is an acronym referring to lesbian, gay, bisexual, and transgendered persons.)

Reaction from religious and social conservatives towards the Justice Department's position 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." In his article, Jackson rejected the widespread 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."

Author's observations:

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.

More information on interracial marriage.

The fundamental question to be answered about DOMA is which should rule:

	Either the "prevailing view of the people of the United States," or
	The U.S. Constitution's guarantee of equal treatment for all citizens.

That is, should the U.S. be ruled by the tyranny by the approximately 55% majority of its voters who reject same-sex marriage, or ruled by its Constitution, which guarantees equal rights to everyone. Since every American is a member of at least one minority, a case can be made that the Constitution should rule, in order to prevent the civil rights of all from being 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, One News Now 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.

2009-AUG-25: Judge dismisses DOMA lawsuit:

District Court Judge David Carter of the Central District of California dismissed the Smelt v. United States case on a technicality. It seems that the plaintiffs originally filed their lawsuit in state court, and it was later moved to federal court. Judge Carter found that the state court did not have jurisdiction over the case because it named the United States as defendant. Thus, a federal court cannot take the case over. However, the plaintiffs can re-file their case directly with the federal court.

It is expected that the couple will re-file. ₈

References used:

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

1. Alex Okrent, "Equality is a moral imperative," Organizing for America, 2009-FEB-28, at: http://my.barackobama.com/
2. Michael Triplett, "Reporting on the DOMA Brief, Part 1," National Lesbian & Gay Journalists Association at: http://nlgjareact.wordpress.com/
3. Jim Brown & Charlie Butts, "Obama follows through, files to repeal DOMA," One News Now, 2009-AUG-18, at: http://www.onenewsnow.com/
4. Terry Phillips, "Same-sex couples take on the IRS," Family News in Focus, 2004-MAY-26, at: http://www.family.org/
5. Jake Tapper, "Obama Justice Department Defends Defense Of Marriage Act  That Candidate Obama Opposed," ABC News, 2009-JUN-12, at: http://blogs.abcnews.com/
6. Decian McCullagh, "Gay Rights Groups Irate After Obama Administration Lauds Defense Of Marriage Act," CBS News, 2009-JUN-12, at: http://www.cbsnews.com/
7. Kevin Fayle, "Obama Administration Says It Must Support DOMA, But It Doesn't Have to Like It," FindLaw, 2009-AUG-17, at:  http://blogs.findlaw.com/
8. Kevin Fayle, "Judge Dismisses DOMA Lawsuit, Even Though Everyone Involved Seems to Hate DOMA," 2009-AUG-25, at: http://blogs.findlaw.com/
9. Alex Okrent, "Equality is a Moral Imperative," 2008-FEB-28, at: http://my.barackobama.com/
10. W. Scott Simpson, "Government Memo Supporting Dismissal of Defense of Marriage Act Lawsuit," Scribd, 2009-AUG-17, at: http://www.scribd.com/

Site navigation:

Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > here

Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > here

Copyright © 1995 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 2009-AUG-17
Latest update: 2009-SEP-15
Author: B.A. Robinson

Go to the previous page, or to the "DOMA" law menu, or choose:

Web ReligiousTolerance.org