Overview, impact, background, & recent
developments of the U.S. Federal & state
"defense of marriage
As the menu of this section states: For over two centuries, from the founding of the United States until 1996, there were two foundational principles governing marriage:
- The District of Columbia and the individual states defined who is eligible to marry within their jurisdiction, and
- The federal government granted benefits, obligations and protections to all legally married couples and to their children anywhere in the U.S.
[This differs from many other countries. In Canada, for example, the federal government defines who can marry, and then provides all married couples with federal benefits, obligations and protections, without regard for the gender(s) of the married couple. In 2005, they made marriage available in Canada to all loving, committed couples, whether they are of the same gender or opposite genders.]
These two U.S. foundational principles were terminated by Congress in 1996 when:
- The Republican controlled House voted 342 to 67 in favor of the Defense of Marriage Act (DOMA).
- The Republican controlled Senate voted 85 to 14, and
- President Bill Clinton (D) later signed DOMA into law on 1996-SEP-21.
So much for states rights.
It is important to realize that the American public was also opposed to same-sex marriage (SSM) at the time: on the order of 65% of adults opposed SSM and only 30% were in favor. Since then, approval has grown and opposition has shrunk, so that most adults favor SSM and the margin between those in favor and those opposed is about 8 percentage points and growing.
Since then, tens of thousands of loving, committed same-sex couples have married legally in DC, or in one of the states, or in another country. Because of DOMA, they have frequently experienced severe financial hardship and insecurities because no federal marriage-related benefits are available to them. Meanwhile, loving, committed opposite-sex couples who also married legally receive over 1,100 benefits.
Attempts are being made in the courts to declare DOMA unconstitutional and in Congress to repeal the law. If either attempt is successful, the foundational principles governing marriage would be restored to their original state, and all couples whose marriages are registered in a state would receive the same federal benefits, obligations, rights and protections.
At the beginning of 2011, 5.1% of the U.S. population lived either in the District of Columbia where SSM is permitted, or in a state that also allows same-sex couples to marry. By mid-2011, same-sex couples in New York could also marry. This figure more than doubled to 11.4% (using 2010 Census data). 1 If California once more allows SSM, about 23.5% of the American population would live where all loving, committed couples can marry, assuming that they meet age and consanguinity requirements.
Constitutional restrictions on federal and state laws:
Many people believe that the term "democracy" means that the wishes of the majority of citizens should rule. In 2008, when California voters narrowly passed the Proposition 8 citizen initiative which terminated future same-sex marriages in the state, many people felt that same-sex marriage was finished in the state, unless a new Proposition repealed Prop. 8. But the plaintiffs in a major lawsuit in California are arguing that Prop 8 violated the U.S. Constitution and thus should be nullified.
The main legal argument in favor of same-sex marriage relates to the Equal Protection Clauses in the U.S. Constitution. It has two clauses that apply here:
Requirements imposted on state laws: The Fourteenth Amendment to the U.S. Constitution states that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [We have shown the equal protection clause in bold.] 6
Requirements imposed on federal laws: The Fifth Amendment to the U.S. Constitution contains a "due process" clause which states that "[N]or shall any person ... be deprived of life, liberty, or property, without due process of law." It has been interpreted by the courts as requiring the federal government to also grant equal protection. 6
A few examples of the impact that DOMA has on same-sex married couples:
- Same-sex couples in the military have been able to go public with their relationship ever since the Don't Ask, Don't Tell policy was terminated in the fall of 2011. But they receive very few of the benefits given to opposite-sex married couples in the military.
- There are no spousal benefits available to same-sex married couples under social security, veterans affairs or any other federal program.
- When one same-sex married spouse dies and the other spouse inherits the family home, the latter must pay inheritance taxes, because the federal government regards them as having been "legal strangers" -- that is, mere roommates -- to each other.
- If an immigrant marries an American citizen, the latter can generally sponsor their spouse, giving them legal status. But this only applies to opposite-sex spouses. To put a human face on this situation, consider the case of Anthony Makk, an Australian, who married Bradford Wells, an American. They have been together for 19 years and married for seven. Wells is extremely ill, and Makk is his primary caregiver. The Immigration Department denied Makk permanent residence status and ordered him to leave the country on short notice. 4
The Hawaii Supreme Court ruled during 1993 in Baehr v. Lewin that same-sex couples might be entitled to marry in the state. Religious and social conservatives throughout the U.S. reacted to that development with horror. They regarded it as an attack on what they refer to as "traditional marriage" or "historical marriage" -- that is marriage reserved
as a special privilege only for opposite-sex couples.
In 1996, a report by the House Judiciary Committee referred to the Baehr decision as the start of an:
"... orchestrated legal assault being waged against traditional heterosexual marriage." It expressed concern that this development "threaten[ed] to
have very real consequences ... on federal law." The Report warned that "... a redefinition of marriage in Hawaii to include homosexual couples could make such couples
eligible for a whole range of federal rights and benefits." 2 Marriage equality for all loving, committed couples was viewed as a major threat; to some it still is considered a threat.
The Hawaii 'an court decision did not actually result in any same-sex marriages. However, it triggered a series of
state "Defense of Marriage Acts" or DOMAs to prevent new same-sex marriages, civil unions, or domestic partnerships. Subsequently, in 1996, a federal
DOMA law was passed to prevent same-sex couples from obtaining the approximately
1,150 federal rights, privileges, and protections for themselves and their children that opposite-sex couples routinely receive when they marry.
On 2009-SEP-15, Reps. Jerrold Nadler (D-NY), Tammy Baldwin (D-WI) and
Jared Polis (D-CO), John Conyers (D-MI), John Lewis (D-GA.), Nydia Velazquez
(D-NY) and Barbara Lee (D-CA), filed a bill in the U.S. House titled the Respect for Marriage Act. It initially had 91 co-sponsors, and was intended to
repeal the federal Defense of Marriage Act. If signed into law, it would allow all loving committed married couples in the U.S.
access to the same 1,100 or so federal programs -- whether they be of the
opposite-sex or same-sex. The decision of whether a loving, committed same-sex couple in a particular state would be allowed to marry would remain with the state.
The 2009 bill did not progress. A similar bill was introduced to the Senate and House during 2011. It may well pass the Senate but has little chance in the House because of its Republican majority.
David Boies is co-counsel in the federal case that challenges the constitutionality of Proposition 8 -- the citizen intiative that narrowly passed and thus terminated SSMs in California. During 2011-OCT, he predicted that his case and one of the 12 or so lawsuits challenging the constitutionality of DOMA would probably arrive at the U.S. Supreme Court for consideration during the 2012-OCT term. He said: "I think that’s probably when both cases get there and I suspect they’ll consolidate them for argument." 5
Recent major developments:
- 2010-JUL-07: MA: A federal judge in a Massachusetts District Court ruled that at least parts of Section 3 of DOMA are unconstitutional in that state. This is the section that requires the federal government to deny married same-sex couples rights equal to those automatically given to opposite-sex married couples
- 2011-FEB-23: DC:
Attorney General Eric Holder announced that the position of the Obama administration has changed. They now believe that Section 3 of the Defense of Marriage Act clearly violates the equal protection component implied in the Fifth Amendment of the U.S. Constitution. Because it is unconstitutional, the Department of Justice will not defend DOMA in the courts. However, they will continue to enforce the law until either:
- The courts definitely determine that the law is unconstitutional or
- Congress passes a law to modify or repeal DOMA. 3 More details
- 2011-JUN-13: CA: Federal bankruptcy court also declared
federal DOMA law unconstitutional. More details
- 2011-OCT-27: The Servicemembers Legal Defense Network (SLDN) filed a lawsuit in MA Federal Court (2011-OCT) More details
- 2012-FEB-17: Federal Attorney General Eric Holder announced that the Obama Administration will no longer defend the constitutionality of some clauses in Title 38 of the U.S. Code. It governs verterans benefits. As currently written, Title 38 extends veterans benefits to opposite-sex married couples in the military but witholds them from same-sex legally married couples. It contains the same definition of "marriage" as is used in the federal DOMA law. More details
- 2012-FEB-22: In what is now becoming a routine event, a federal judge in the U.S. District Court for Northern California in San Francisco ruled that the Section 3 of the federal DOMA law is unconstitutional because it violates the equal protection clause of the 14th amendment of the U.S. Constitution. This is the section that restricts federal benefits to opposite-sex married couples, and denies them to same-sex married couples.
- 2011-JUN-13: Twenty of 24 judges at America's largest consumer bankruptcy court, the U.S. Bankruptcy Court for the Central District of California became the third U.S. bankruptcy court to reject attempts by the Obama administration to disallow married same-sex couples from declaring bankruptcy together. However, the California court took the most unusual further step of declaring the DOMA law to be unconstitutional! More details.
- 2012-JUN-01: For the first time, a federal appellate court declared Section 3 of DOMA to be unconstitutional. The United States Court of Appeals for the First Circuit confirmed the decision of the District Court in Boston that the section in DOMA that prohibits the federal government from passing on to married same-sex couples the over 1,100 benefits that opposite-sex married couples routinely receive. On JUN-02, an Email from the National Organization for Marriage -- which opposes marriage equality -- commented:
"The ruling, coupled with the Ninth Circuit ruling on California's Proposition 8, sets the stage for a Supreme Court showdown to determine the future of marriage in America next year."
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- David Badash, "Twice As Many U.S. Same-Sex Couples Will Be Able To Marry If NY Equality Act Passes," The New Civil Rights Movement, 2011-JUN-16, at: http://thenewcivilrightsmovement.com/
- "Aff. of Gary D. Buseck, Ex. D, H.R. Rep. No. 104-664 at Pages 2 & 3 (1996). Reprinted in 1996
U.S.C.C.A.N. 2905, 2906-07.
- Bonney Kapp, "Attorney General declares DOMA unconstitutional,"
CNN, 2011-FEB-23, at: http://whitehouse.blogs.cnn.com/
- Veronica Roberts, "Same-Sex Marriage & Immigration Rights: Gay Spouse Who Cares For Sick Partner To Be Deported On Grounds Of Defense Of Marriage Act," All Voices, 2011-AUG-10, at: http://www.allvoices.com/
- Julie Bolcer, "Cuomo Calls for End of DOMA," Advocate, 2011-OCT-28, at: http://www.advocate.com/
- "Text of Section 1 of the Fourteenth Amendment to the United States Constitution," Wikipedia, as on 2012-FEB-15, at: http://en.wikipedia.org/
Copyright © 1995 to 2012 by Ontario
Consultants on Religious Tolerance
Originally written: 1995-SEP-11
Latest update: 2012-MAR-07
Author: B.A. Robinson