DEFENSE OF MARRIAGE ACT OF 1996
The Defense of Marriage Act (DOMA) (Pub.L. 104-199, Sept. 21, 1996, 110 Stat. 2419) is a federal law that denies federal recognition of samesex marriages and authorizes states to refuse to recognize same-sex marriages licensed in other
states. DOMA was passed out of the fear that a
lawsuit in Hawaii would force that state to rec-
ognize same-sex marriages. Under the U.S. Con-
stitution’s FULL FAITH AND CREDIT CLAUSE
(Article IV, Section 1), states are expected to rec-
ognize the public acts, records, and judicial pro-
ceedings of every other state. Therefore,
Congress was alarmed at the prospect of a gay or
lesbian couple being married in Hawaii and then
going to another state and expecting that state to
recognize them as legally married. In addition,
Congress did not want to grant same-sex cou-
ples the same federal benefits that are given to
heterosexual couples who are legally married.
The apparent need for DOMA began after
the Hawaii Supreme Court issued a ruling in
Baehr v. Lewin, 852 P,2d 44 (1993). In this case
three same-gender couples filed a lawsuit after
being denied marriage licenses. The couples
alleged the state had acted unconstitutionally
because Hawaii’s state constitution contains an
equal rights provision, which mandates that all
persons, regardless of gender, should be given
EQUAL PROTECTION of the law. The state mar-
riage law did not state that licenses should be
issued only to male-female couples. The
supreme court agreed that the state marriage law
should guarantee same-gender couples equal
protection but did not order the state to grant
the couples licenses. Instead, the court sent the
case back to the lower court of appeals and
directed the state to prove that the inequality of
marriage rights (in this case, involving same-sex
marriages) was justified.
In 1994, the Hawaii legislature changed the
marriage law to explicitly state that the contract of marriage applied only to marriages between a man and a woman. Despite this change and the
reluctance of the state supreme court to address
the issue again, supporters of traditional marriage
around the United States voiced concern
that same-sex marriage could be legitimized. If
this happened in Hawaii it would generate lawsuits
in other states from same-gender couples
married in Hawaii seeking recognition of their
new legal status. These fears intensified when the
Hawaii legislature failed in 1996 to pass a proposed
constitutional amendment that would
overrule the court decision.
In 1996, DOMA was introduced in the
House of Representatives by Representative Bob
Barr (R-Ga.) and in the Senate by Senator Don
Nickles (R-Okla.). It passed the House by a vote
of 342–67 and the Senate by a vote of 85–14.
President BILL CLINTON signed the act into law
on September 21, 1996. Supporters of GAY AND
LESBIAN RIGHTS had no success in stopping
DOMA, in part because the vote became a REFERENDUM
on the idea of “gay marriage.” Even
liberal Democrats who were staunch supporters
of gay and lesbian rights voted for DOMA, arguing
that it would be better to give same-gender
couples some form of legal recognition short of
traditional marriage.
The text of DOMA is very brief and contains
only two provisions. The first provision states
that no state, territory, or Indian tribe shall be
required to legally recognize a “relationship
between persons of the same sex that is treated
as a marriage under the laws of another state,
territory, or Indian tribe.” This language tells
these jurisdictions that the Full Faith and Credit
Clause has no application to same sex marriages.
The second provision directs the federal
government to follow a definition of the word
marriage that means “only a legal union between
one man and one woman as husband and wife.”
Likewise, the word spouse is defined as a “person
of the opposite sex who is a husband or a wife.”
These definitions are meant to preclude a samesex
couple that has been married in a state from
being eligible for federal benefits such as married
INCOME TAX status and SOCIAL SECURITY
survivor benefits. In effect, DOMA bars federal
recognition of same-sex marriages through the
use of these definitions.
Although opponents of DOMA argued that
it violates both the DUE PROCESS CLAUSE of the
FIFTH AMENDMENT and the Full Faith and
Credit Clause they did not file a lawsuit challenging
its constitutionality. By 2002, 36 states
had passed laws that bar same-sex marriages or
the recognition of same-sex marriages formed
in other states. Hawaii, the state that started the
debate, passed a constitutional amendment in
1998 that gave the legislature the right to decide
on the legality of same-sex marriages. In 1999,
the Hawaii Supreme Court ruled that the 1998
amendment and the act of the legislature barring
same-sex marriages ended the litigation
that had been pending since 1993.
Gay and lesbian organizations have shifted
their political agenda since DOMA, seeking some
lesser form of civil recognition for same-sex couples.
Vermont became the first state to enact a
law recognizing “civil unions” between same-sex
couples (23 V.S.A. § 1201 et seq. [2000]). The
2000 law came in response to a 1999 Vermont
Supreme Court ruling that its state constitution
required same-sex couples to receive the same
benefits and protections given to opposite-sex
couples. The court, in Baker v. Vermont, 170 Vt.
194, 744 A.2d 864 (1999), rejected the plaintiffs’
claim that as same-sex couples they were eligible
for marriage licenses under the marriage
statutes. Vermont laws reflected the common
understanding that marriage consists of a union
between a man and a woman.
However, the court was persuaded by the
plaintiffs’ constitutional claims. The plaintiffs
contended that their ineligibility for a marriage
license violated their rights to the common benefit
and protection of the law guaranteed by
Chapter I, Article 7 of the Vermont constitution.
By denying them access to a civil marriage
license, the law effectively excluded them from a
wide array of benefits and protections, including
access to a spouse’s medical, life, and disability
insurance; hospital visitation, and other medical
decision-making privileges; spousal support; the
ability to inherit property from the deceased
spouse without a will; homestead protections;
and over two hundred other statutory items.
The court stopped short of legalizing gay marriage,
stating that it was up to the legislature to
modify the marriage laws, create a parallel
domestic partnership system, or create some
“equivalent statutory alternative.” The legislature
responded with the civil union statute.
Some commentators have speculated that
couples from other states that are granted a civil
union in Vermont may file a lawsuit in their
home states challenging the constitutionality of
DOMA and state laws barring same-sex marriages.
FURTHER READINGS
Fruehwald, Scott. 1999. “Choice of Law and Same-Sex Marriage.”
Florida Law Review 51.
Goldberg-Hiller, Jonathan. 2002. The Limits to Union: Same-
Sex Marriage and the Politics of Civil Rights. Ann Arbor:
Univ. of Michigan Press.
“Same-Sex Marriages and Civil Unions: On Meaning, Free
Exercise, and Constitutional Guarantees.” 2002. Loyola
Law Journal 33.
CROSS-REFERENCES
Covenant Marriage; Gay and Lesbian Rights; Marriage.
