"Defense of marriage acts" (DOMA)

2003: Federal DOMA law revisited.
2009: Anti-DOMA brief.

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"SSM" is an acronym referring to same-sex marriage.

"LGB" is an acronym referring to lesbians, gays and bisexuals.

"LGBT" is an acronym referring to lesbians, gays, bisexuals, transgender persons and transsexuals.

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. There are at least three serious weaknesses in the DOMA law:

• It appears to conflict with the Article IV, Section 1 of the US Constitution -- the "full faith and credit" clause. That clause requires one state to honor the laws of another state. So, for example, a Florida driver's license is honored in Ohio. But the federal DOMA law specifies that a state may refuse to recognize same-sex marriages solemnized in other states.
  
  
• The Tenth Amendment to the U.S. Constitution assigns all powers that are not specifically given to the federal government to the individual states or to the people. Since the Constitution neither defines marriage nor assigns its definition to the federal government, by default its definition is the responsibility of the individual states. However, Section 3 of DOMA is in conflict with this provision by its refusal to recognize legal marriages of same-sex couples.
  
  
• By singling out one group in society -- loving, committed, married same-sex couples -- and denying them access to benefits and protections that are automatically provided to all opposite-sex married couples, DOMA appears to violate the equal protection clauses of the U.S. Constitution.

In any conflict between a law and a Constitution, the Constitution always rules.

The only long-term approach to banning same-sex marriage would 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. In 2004, the wording of the proposed amendment stated:

"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." ₁

However, even if this amendment were passed by the Senate, House, and a sufficient number of states, it would not necessarily be permanent. Any amendment can be repealed by a subsequent amendment.

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 being open with their sexual orientation to friends and family.
  
  
• There is an increasing awareness among the public that a person's sexual orientation -- bisexual, heterosexual or homosexual -- is discovered, and not chosen.
  
  
• There is also an increasing awareness that a adult's sexual orientation is always or almost always fixed.

These four factors, and perhaps others, are gradually swaying public support in favor of same-sex marriage. If a marriage amendment is passed, when young adults mature and enter positions of power, they might well initiate its repeal.

National polls during 2010 showed that the number of American adults in favor of SSM matched the number opposed. Subsequent polls show that those supporting SSM have become the majority.

We see the effects of this swing towards acceptance in various referendums between 2008 and 2012:

• 2008 & 2009: Proposition 8 which terminated new SSMs in California passed by a margin of 4.5 percentage points. A referendum in Maine to prevent same-sex couples from marrying passed by a margin of 6 percentage points.
  
  
• In 2012, referendums in three states: Maine, Maryland and Washington state enabled SSM by a margin of about 4 to 6 percentage points -- a swing of about ten percentage points over four years.

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."

Reaction from religious and social conservatives was predictable:

• 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." ₂

  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." ₂

  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 include interracial couples.

  More details on interracial marriage.

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 what has been called "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; otherwise, 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 disapproval 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. ₂ They also dropped the quotation marks in one location where they referred directly 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. Unfortunately, we were unable to receive confirmation of this from One News Now.

Terminology and notation used to refer to same-sex marriage:

Probably the most common term used to refer to two men or two women marrying is "gay marriage." This term is not inclusive. Many such marriages are composed of one gay male and one bisexual man, one lesbian and one bisexual woman, two bisexual men, or two bisexual women. We recommend the term "same-sex marriage" which seems to be gaining acceptance.

However the terms "gay marriage" and "same-sex marriage" can be confusing. What most LGBs, religious and social liberals, some mainline denominations, civil rights advocates, etc. advocate is not a separate form of marriage. They advocate redefining marriage to include same-sex couples. They don't want a new marriage type. They want marriage to be defined as a union of two persons, not as a union of a man and a woman.

References used:

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

1. Robert Longley, "Federal Marriage Amendment - H.J. Res 56," About.com, at: http://usgovinfo.about.com/
2. "Obama follows through, files to repeal DOMA," One News Now, 2009-AUG-18, at: http://www.onenewsnow.com/

Copyright © 1995 to 2012 by Ontario Consultants on Religious Tolerance
Originally written: 1995-SEP-11
Latest update: 2012-NOV-28
Author: B.A. Robinson

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