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All About the Defense of Marriage Act (DOMA)

The Defense of Marriage Act was enacted by Congress in 1996.

DOMA defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize a marriage from another state if it is between persons of the same sex. Why all of a sudden in 1996 did Congress feel the need to defend marriage? Well because Hawaii for three years had been having court cases and there was a possibility that same-sex marriage would be legalized in that state. According to the National Conference of State Legislators

This ruling is part of a larger public discussion of “marriage” and “family” that started in 1993 when the Hawaii Supreme Court ruled that laws denying same-sex couples the right to marry violated state constitutional equal protection rights unless the state could show a “compelling reason” for such discrimination. In 1996, a trial court ruled that the state had no such compelling reason and the case headed back to the Supreme Court. Voters adopted a Constitutional amendment in 1998, before the final ruling was issued, giving the Legislature the power to reserve marriage to opposite-sex couples and effectively ending the lawsuit.

Many people questioned at the time why President Clinton signed DOMA into law.

He was considered pretty LGBT friendly, and the community couldn’t believe when DOMA and Don’t Ask, Don’t Tell went through on his watch. It appears that Clinton agreed to DOMA to prevent an attempt to get a Federal Marriage Ammendment into the Consitution. He felt this would stop the attacks and appease the right wing. However, sine 2002 alone FMA has been introduced four times in the House of Representatives and four times in the Senate. President Bush has said he would support such a Constitutional Ammendment. At least that nightmare ends soon.

Since the enactment of DOMA many states have taken similar action. According to the NCSL,

Forty-one states currently have statutory Defense of Marriage Acts. Three of those states have statutory language that pre-dates DOMA (enacted before 1996) defining marriage as between a man and a woman. Twenty-seven states have defined marriage in their constitutions. Arizona is the only state that has ever defeated a constitutional amendment defining marriage between a man and a woman (2006).

States with Statutes Defining Marriage Between One Man and One Woman

States with Constitutional Language Defining Marriage

States Without Law Prohibiting Same-Sex Marriage

Alabama Alaska Arizona Arkansas Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland* Michigan Minnesota Mississippi Missouri Montana New Hampshire North Carolina North Dakota Ohio Oklahoma Pennsylvania South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming *In January 2006, a state judge found the Maryland statute unconstitutional but it remains in effect pending appeal.	Alabama Alaska Arkansas Colorado Georgia Hawaii* Idaho Kansas Kentucky Louisiana Michigan Mississippi Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon South Carolina South Dakota Tennessee Texas Utah Virginia Wisconsin *Hawaii’s constitution was amended in 1998 to read “The Legislature shall have the power to reserve marriage to opposite-sex couples.” The Hawaii legislature subsequently passed a law prohibiting marriage for same-sex couples.	Massachusetts New Jersey New Mexico New York Rhode Island
TOTALS:41	27	5

So where can we go from here with DOMA on a federal level?

We have some new guys getting ready to move into the White House and a Congress that may actually be able to get things done. Can we repeal DOMA? Some say ‘yes’, others say ‘no.’ I know that is shocking political commentary. But I have found some reasonable hope presented by Glenn Greenwald.

I highly recommend reading the entire article but I will go through some of the highlights of how DOMA, or part of it could be repealed.

With their newly minted control over the White House and Congress, Democrats can easily provide a vital (if not complete) antidote to Proposition 8: repeal of the so-called “Defense of Marriage Act” (.pdf). Enacted in 1996, DOMA’s principal effects are two-fold: (1) it explicitly prohibits the Federal Government and all federal agencies from extending any federal marriage-based benefits, privileges and rights to same-sex couples [Section 3]; and (2) it authorizes states to refuse to recognize same-sex marriages from other states [Section 2].
While Section 2 is symbolically wrong (though ultimately inconsequential), it is Section 3 which is especially odious and damaging. Opposite-sex couples receive a whole slew of vital marriage-based benefits and entitlements from the Federal Government which DOMA expressly denies to same-sex couples. As but one particularly glaring example, if an American citizen marries a foreign national of the opposite sex (an increasingly common occurrence), then, under U.S. immigration law, the foreign spouse is entitled, more or less automatically, to receive a Green Card and, if desired, U.S. citizenship, so that American citizens can live in the U.S. together with their spouse.

But if an American citizen marries a foreign national of the same sex, then DOMA bars the INS from recognizing the marriage as a basis for granting immigration rights.

As a result of DOMA, American citizens are put in the hideous predicament of having to choose either to (a) live apart from their spouse or (b) live outside their own country. The U.S. now stands virtually alone in the Western World in imposing such a cruel dilemma on its citizens (worse still, many U.S. citizens have same-sex spouses from countries where the U.S. citizen cannot live, due to lack of resources or opportunities or because that country also refuses to grant immigration rights to same-sex couples; in those cases, DOMA means that Americans are forced, with no choice, to live apart — oceans apart — from their spouse).

Greenwald goes on to say,

Repealing Section 3 of DOMA — even if one left Section 2 in place — would enable the equal granting of federal rights to same-sex couples without having any effect on the definition of “marriage.” All of DOMA should be repealed, but repealing Section 3 is, without question, a politically palatable compromise (it’s what Hillary Clinton advocated in the primaries, in contrast to Obama, who advocated its full repeal). Doing that would grant equal rights to same-sex couples without changing the definition of “marriage.”

So what’s the problem? Seems like this should be easy right. Wrong.

In my opinion the Democrat leadership in Congress, Speaker Pelosi and Senator Reid specifically haven’t developed enough guts to try and get this done.

It is something the LGBT community itself is going to have to push for.

We are going to have remind them that Obama campaigned on this as a Senator and while running for President.

As Greenwald points out,

Some appear not to know that a candidate (named “Barack Obama”) who has repeatedly and emphatically vowed to overturn the Defense of Marriage Act — and who called it an “abhorrent law” — just won a national election in a landslide. And, in the very widely watched Vice-Presidential debate, this is what his Vice Presidential candidate, Joe Biden, said:

“Do I support granting same-sex benefits? Absolutely positively. Look, in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple. . . .

It’s what the Constitution calls for. And so we do support it.

We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do. . . . there should be no civil rights distinction, none whatsoever, between a committed gay couple and a committed heterosexual couple.”

That’s what repeal of Section 3 of DOMA would enable — treating opposite-sex and same-sex couples exactly equally. That’s all it would do; it would not re-define “marriage.”

Given Obama and Biden’s clearly expressed stance, it’s a bit difficult — at least for a rational person — to argue that these issues are politically radioactive and that Democrats would lose power if they went near them. And, as indicated with the link above, majorities favor civil unions and the equal granting of rights to same-sex couples.

So we shall see if the Democrats get their heads screwed on straight, well maybe not so straight , and actually try and undo some of the wrongs from the past and advance us closer to the promise “that all men are created equal.”

Lezzymom has two kids and a wonderful partner. Her political commentary has appeared on C-Span and CSPAN.org. Visit her Lezzymom blog for more of her insights.