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Religious Tolerance logo

Federal "Defense of marriage act" (DOMA)

2004 to 2013: Introduction: Legal challenges
to DOMA's constitutionality. A long grind.

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In this web site:
"DOMA" means the Defense of Marriage Acts; SSM means same-sex marriage.
"LGB" means lesbian, gay, and bisexual individuals.
"LGBT" means lesbians, gays, bisexuals, transgender persons and transsexuals.

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Brief timeline of selected federal lawsuits against DOMA:

  • 1996-SEP-21: President Clinton signed the DOMA bill into law.

  • During 2004 to 2008, some lawsuits were launched to have the federal DOMA law declared unconstitutional; none were successful.

  • In 2009, the Gay and Lesbian Advocates and Defenders (GLAD) -- a national gay-positive group -- filed a lawsuit against DOMA in Federal District Court in Boston MA called: "Gill et al. v. Office of Personnel Management et al." A second and very similar case case was launched by the Commonwealth of Massachusetts, called: Massachusetts v. Department of Health and Human Services. Because of the similarity of the cases, U.S. District Court Judge Joseph L. Tauro heard and ruled on both cases together.

Lawyer David Boies compared court challenges to the constitutionality of DOMA with the attempts by Democratic legislators to repeal DOMA directly. He called them:

"... two paths to the same point. ... The DOMA litigation has an additional advantage in the sense that historically marriage has always been a state issue. While I think they’re both the same issue, the DOMA [lawsuits approach is] ... in some sense even a stronger case because it has both the equal protection and due process [constitutional] arguments and the states’ rights arguments." 1

The U.S. Constitution states that all matters not assigned to the Federal Government nor prohibited by the Constitution are reserved for the states or for the people. From the time that U.S. was founded until the passage of the federal DOMA law in 1996, individual states defined the requirements of marriage, and the federal government accepted the states' decisions. After DOMA became law, the federal government was prohibited by DOMA from recognizing same-sex marriages that had been legally solemnized.

  • In 2010, Judge Tauro ruled that the federal Defense of Marriage Act was clearly unconstitutional on a number of grounds. The federal government -- the defendant in these cases -- appealed the case. This is normal behavior; governments traditionally support the constitutionality of their own laws in court.

  • Also in 2010, In a separate case, Edith Windsor launched a lawsuit against DOMA in the Southern New York federal District Courts. It is called Windsor v. United States.

  • During early 2011, in a very unusual development, the Department of Justice (DoJ) decided that DOMA was so obviously unconstitutional that they could no longer ethically defend its constitutionality. However, the DoJ would continue to enforce the Federal DOMA law because it is the law of the land. They will only cease enforcing it if:
    • The U.S. Supreme Court determines that DOMA is unconstitutional, or

    • Congress modifies or repeals DOMA.

A few commentators suggested that the DoJ decision would create a tipping point that would be followed by an acceleration of the trend towards marriage equality for loving, committed same-sex couples, and a more rapid movement towards acceptance of the LGB community generally. Their predictions appear to be valid.

  • In 2011-JUL, there were allegedly more than a dozen court cases active in federal courts that were attempting to have DOMA declared unconstitutional. For example, on one day -- Thursday, 2011-OCT-22:

    • The Service members Legal Defense Network filed a lawsuit in Massachusetts federal court. They argued that DOMA prevents LGB military members, who now can serve openly, and their families from receiving benefits equal to those of opposite-sex couples. 2

    • Gay and Lesbian Advocates and Defenders (GLAD) filed a brief in the appeal of Gill et al. v. Office of Personnel Management. This is one of two cases launched in 2010 in which federal judge found DOMA's Section 3 unconstitutional. This section prevents the federal government from recognizing same-sex marriages that have been solemnized and legally registered in the District of Columbia or in one of the growing number of states that have legalized SSM.

  • In 2012: The federal District Court for Northern California found the federal DOMA law to be unconstitutional in Golinski v. Office of Personnel Management.

    Judge Tauro's ruling in Gill was unanimously upheld by the 1st U.S. Circuit Court of Appeals.

    Judge Barbara S. Jones in the Southern New York District Court filed her decision in Windsor v. US. This became the fifth federal court that has recently found DOMA to be unconstitutional; none have upheld the law. Her ruling was subsequently upheld by the 2nd U.S. Circuit Court of Appeals.

    The decisions by the 1st and 2nd U.S. Court of Appeals and by the N. California District Court were appealed to the U.S. Supreme Court.

  • 2012-NOV-30: The U.S. Supreme Court was scheduled to meet and decide whether to accept Gill and/or Wilson or neither case.

  • 2012-DEC-07: The Supreme Court decided to accept Windsor v. U.S. for review. Oral arguments are to be heard on 2013-MAR-27. On the previous day, they will hear arguments on the Proposition 8 case that terminated future same-sex marriages in California as of 2008-NOV.

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Interpretation of these decisions by the public:

They differed:

  • Many religious and social conservative commentators, para-church groups, etc. maintained that the judges were biased by their own liberal personal beliefs, and were legislating from the bench. That is, they were taking over the role normally restricted to the legislatures and were, in essence, creating law.

  • Many mainline and liberal commentators noted that the judge(s) were simply performing one of their main functions: to compare the DOMA law with applicable equal access and other clauses in the U.S. Constitution. They found DOMA in conflict with the constitution, often on multiple grounds. They were compelled by logic to declare DOMA unconstitutional.

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Involvement of the U.S. Supreme Court (SCOTUS):

Among those lawsuits considered by SCOTUS that involve religious, moral and ethical factors, SCOTUS is profoundly divided philosophically:

  • Four of the five justices appointed by Republican presidents, Justice Samuel Alito , Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, are generally regarded as judicial conservatives and often vote as a block.

  • All four of the justices appointed by Democratic presidents, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor are generally regarded as more liberal and often vote as a block.

  • Justice Kennedy is often regarded as a conservative who has voted with the liberals as a swing vote.

All of the Justices follow either the Roman Catholic or Jewish religion. Justice Stevens, who retired in 2010, was the most recent Protestant to serve on the court.

During 2012-SEP, Susan Sommer, director of constitutional litigation at Lambda Legal -- a pro LGBT equality group -- said:

"It is critically important for the U.S. Supreme Court to hear one or more of the DOMA cases. In addition to being barred from the protections, rights and benefits afforded under 1,138 federal laws, it is demeaning to married same-sex couples and their families to have their federal government treat them as legal strangers."

Also during that month, Justice Ruth Bader Ginsburg was at the University of Colorado answering question raised by law students. When asked about a review of DOMA by the highest court, she responded that she couldn’t discuss matters that would come to the court. However, she did say:

"I think it’s most likely that we will have that issue before the court toward the end of the current [2012/2013] term." 3

SCOTUS is scheduled to hear oral arguments in late 2013-MAR, and will probably issue its ruling in late 2013-JUN.

On 2012-DEC-07, the Supreme Court decided to accept Windsor v. U.S. for review. A New York District Court and the 1st U.S. Court of Appeals had ruled the federal DOMA law to be unconstitutional. We are guessing that the result will be a 5 to 4 decision in 2013-JUN against DOMA's constitutionality, with all four moderate and liberal Justices voting against constitutionality, the four strict constructionist/conservative Justices voting for constitutionality, and Justice Kennedy being the swing voter. However, it is quite conceivable that the result could be 5 to 4 in the opposite direction.

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Main court cases challenging the federal DOMA law as of 2012-NOV:

Case Year of ruling State Federal court Court ruling Law found constitutional: Score to date
Gill & OPM + MA v. DHHS
District Court
0 in 1
Windsor v. U.S.
District Court
0 in 2
Balas Bankruptcy
Bankruptcy Court
0 in 3
Golinski v. Office of Personnel Management
District Court
0 in 4
Gill & OPM + MA v. DHHS
1st. U.S. Circuit Court of Appeals
0 in 5
Windsor v. U.S. *
2nd. U.S. Circuit Court of Appeals
0 in 6

* On 2012-DEC-07, the decision by the 2nd U.S. Circuit Court of Appeals was accepted by the U.S. Supreme Court for a final ruling.

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Webmaster's comments:

The consistent findings by lower courts that the federal DOMA law is unconstitutional might make the overturn of DOMA by the U.S. Supreme Court appear to be almost certain. However, as some commentators have noted, over the past two or three decades, every new Justice appointed to the Supreme Court has been more conservative than the Justice that they replaced. As a result, the Supreme Court has continually moved to the right over time.

If the Supreme Court does declare DOMA unconstitutional, be prepared for an explosion in emotion that is perhaps even greater than the tsunami that occurred the last time that the Court redefined marriage. That happened in 1967 when the Court ruled in Loving v. Virginia that interracial marriages were legal across the U.S.

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. Julie Bolcer, "Cuomo calls for end of DOMA,", 2011-OCT-28, at:
  2. Andrew Harmon, "Gay service members sue for equal benefits," The Advocate, 2011-OCT-27, at:
  3. Miranda Leitsinger, "Did Supreme Court justice tip hand on gay marriage," NBC News, 2012-SEP-20. at:

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

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

Copyright © 2009 to 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2009-MAR
Latest update: 2013-MAR-03
Author: B.A. Robinson

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