Defense of Marriage Act

The Defense of Marriage Act, or DOMA is a federal law of the United States passed by Congress and signed by former President Bill Clinton on September 21, 1996. The law provides:

• First, it allows each state (or similar political division in the United States) to recognize or deny any marriage-like relationship between persons of the same sex which has been recognized in another state.
• Second, it explicitly recognizes for purposes of federal law that marriage as "a legal union of one man and one woman as husband and wife" and by stating that spouse "refers only to a person of the opposite sex who is a husband or a wife."

Congressional proponents assert authority to enact the law under the Full Faith and Credit clause of the United States Constitution with the purpose to normalize heterosexual marriage on a federal level and permit each state to decide for itself whether or not to recognize "same-sex unions" if other states did recognize same-sex unions. Thirty-eight states have enacted laws denying the recognition of same-sex unions, which is the same number of states needed to amend the United States Constitution.

Constitutionality

The Full Faith and Credit clause grants Congress the authority to "prescribe...the Effect" which the laws of one state have in another. Some have argued that DOMA is unconstitutional and would not survive judicial scrutiny under the Supreme Court of the United States because it goes beyond the powers granted to Congress by that clause. Others believe that DOMA is constitutional. The strongest version of a Federal Marriage Amendment would permanently prohibit both the federal and state governments from recognizing same-sex unions. Another alternative, endorsed by the 2004 Republican Party political platform, is for Congress to pass a law protecting DOMA from judicial scrutiny; some have argued that this itself would be unconstitutional.

From a federalist point of view, taking the extreme step of expanding federal law further into a states' police power by enacting a strong version of the Amendment may be premature regardless of whether DOMA is constitutional. The Supreme Court has long recognized a "public policy exception" to the Full Faith and Credit clause. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. The public policy exception has been applied in cases of marriage (such as polygamy, miscegenation or consanguinity), civil judgments and orders, criminal conviction and others.

DOMA and state legislation

In recent years, some state legislatures and supreme courts have been moving toward legal recognition of same-sex unions as marriages or marriage-like relationships. These trends are applauded by gay rights activists on one side of the political spectrum and opposed on the other side of the spectrum, particularly by the Christian right.

The gay rights movement has been trying to gain recognition of same-sex marriage as a fundamental right, so that homosexual partners could be accorded legal rights on a par with those of heterosexual marriages, and so that there will be greater public acceptance of homosexuality. Gay rights advocates claim that same-sex unions in one state should be recognized in other states under the Full Faith and Credit clause. Thus, they assert that if a state such as Hawaii or Vermont legalizes same-sex marriage, all other states should legally recognize same-sex marriage as legitimate.

Opponents of same-sex marriage reject the activists' claim and assert that DOMA and the "public policy exception" to the Full Faith and Credit clause allow states to reject another state's recognition of same-sex marriage. Opponents feel that the issue should be decided more democratically through the legislative process rather than the non-democratic, judicial process. Thus, many opponents regard activists' efforts to have same-sex marriages recognized by the federal courts as a way of evading the legislative process against the will of the majority of Americans. Gay rights advocates, however, feel that the democratic process is denying them a fundamental right and that since one of the purposes of the judiciary in the United States governmental system of checks and balances is to protect the fundamental rights of minority groups against the tyranny of the majority, the judiciary should act to create same-sex marriage.

Both supporters and opponents of same-sex marriage accuse the other side of trying to "legislate morality".

Legal history

The Defense of Marriage Act was signed into law by President Bill Clinton on September 21, 1996 after moving through a legislative fast track and overwhelming approval in both houses of the Republican-controlled U.S. Congress. Its Congressional sponsors stated, "[T]he bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex."

Critics of DOMA argue that the law is unconstitutional on several grounds including:

• Congress over-reached its authority under the Full Faith and Credit clause
• the law illegally discriminates and violates the equal protection clause
• the law violates the fundamental right to marriage (including same-sex marriage) under the due process clause

Several challenges to the law's constitutionality have been presented to the United States Supreme Court since its enactment, but so far the Court has declined to review any such cases. Many states have still not decided whether to recognize other states' same-sex marriages or not, which is unsurprising as only Massachusetts has yet issued licences for same-sex marriages as of 2004.

The city of San Francisco began issuing marriage licenses to same-sex couples in February 2004, but stopped doing so soon thereafter, in compliance with a preliminary injunction issued by the Supreme Court of California.

Some states have proactively, by legislation or referendum, determined that they will not recognize same-sex marriages.

In response to the growing number of legal and political challenges, some proponents of DOMA have proposed the Federal Marriage Amendment to the United States Constitution, the strongest version of which would override any possible application of the Full Faith and Credit clause to same-sex partnerships, marriages or civil unions in other states. It would also prevent any state from legalizing same-sex marriages entered into within the state.

See also: Same-sex marriage in the United States.