Defense of Marriage Act (DOMA) (Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) is a United States federal law that defines marriage as the legal union of one man and one woman. The law passed both houses of Congress by large majorities and was signed into law by President Bill Clinton on September 21, 1996.
Under the law, no U.S. state or political subdivision is required to recognize a same-sex marriage treated as a marriage in another state. Section 3 of DOMA codifies the non-recognition of same-sex marriage for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, and the filing of joint tax returns. This section has been found unconstitutional in two Massachusetts cases, a California bankruptcy case, and a California class action suit on the part of public employees. The Obama administration announced in 2011 that it had determined that Section 3 was unconstitutional and, though it would continue to enforce the law, it would no longer defend it in court. In response, the House of Representatives undertook the defense of the law on behalf of the federal government in place of the Department of Justice (DOJ).
Text
The main provisions of the act are as follows:
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
Enactment
Georgia Representative Bob Barr, then a Republican, authored the Defense of Marriage Act and introduced it in the House of Representatives on May 7, 1996. Senator Don Nickles of Oklahoma introduced it in the Senate. Its Congressional sponsors stated, "The 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." Nickles said: "If some state wishes to recognize same-sex marriage, they can do so". He said the bill would insure that "the 49 other states don't have to and the Federal Government does not have to. In opposition to the bill, Colorado Rep. Patricia Schroeder said: "You can't amend the Constitution with a statute. Everybody knows that. This is just stirring the political waters and seeing what hate you can unleash. Barr countered that Article IV Sec. 1 of the Constitution grants Congress power to determine "the effect" of the obligation of each state to grant "full faith and credit" to other states' acts.
The 1996 Republican Party platform endorsed DOMA, referencing only Section 2 of the act: "We reject the distortion of [anti-discrimination] laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions. The Democratic Party platform that year did not mention DOMA or marriage. In a June 1996 interview in the gay and lesbian magazine The Advocate, Clinton said: "I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered. He also wrote that "raising this issue is divisive and unnecessary.
Some Democrats viewed the legislation as politically motivated rather than a response to societal developments. Sen. Ted Kennedy of Massachusetts called DOMA the "Endangered Republican Candidates Act and said it was "a mean-spirited form of legislative gay-bashing designed to inflame the public four months before the November election. Gay and lesbian rights organizations found there was little time to lobby in opposition, because the Clinton administration preferred to have DOMA become law as quickly as possible and not become an issue in the fall presidential campaign. Kennedy led an effort to pass hiring and employment protection for gays and lesbians, the Employment Non-Discrimination Act (ENDA), in concert with DOMA, but the effort failed in the Senate by one vote.
The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress, passing by a vote of 85–14 in the Senate[20] and a vote of 342–67 in the House. Democratic Senators voted for the bill 32 to 14 (with Pryor of Arkansas absent), and Democratic Representatives voted for it 188 to 65, with 15 not participating. All Republicans in both houses voted for the bill with the sole exception of the one openly gay Republican congressman, Rep. Steve Gunderson of Wisconsin. On the day it passed the House, a White House spokesman called the legislation "gay baiting". Clinton, who was traveling when Congress acted, signed it into law promptly upon returning to Washington, D.C., on September 21, 1996. The White House released a statement in which Clinton said "that the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation".
Impact
The General Accounting Office issued a report in 1997 identifying "1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor". In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003.[27] With respect to Social Security, housing, and food stamps, the GAO found that "recognition of the marital relationship is integral to the design of the program[s]." The other major categories the GAO identified were veteran's benefits, including pensions and survivor benefits; taxes on income, estates, gifts, and property sales; and benefits due federal employees, both civilian and military. Among many specifics, it noted the rights of the widow or widower of the creator of a copyrighted work and certain financial disclosure requirements that include the spouses of members of Congress and certain officers of the federal government. Education loan programs and agriculture price support and loan programs also implicate spouses. Financial aid to "family farms" is restricted to those in which "a majority interest is held by individuals related by marriage or blood.
Because the federal Employee Retirement Income Security Act (ERISA) controls most employee benefits provided by private employers, DOMA prevents most employers in the private sector from providing health care, pension, and disability benefits to same-sex spouses on an equal footing with opposite-sex spouses. ERISA does not affect employees of state and local government or churches, nor does it extend to such benefits as employee leave and vacation.
Under DOMA, persons in same-sex marriages are not considered married for immigration purposes. U.S. citizens and permanent residents in same-sex marriages can not petition for their spouses, nor can they be accompanied by their spouses into the U.S. on the basis of a family or employment-based visa. A non-citizen in such a marriage can not use it as the basis for obtaining a waiver or relief from removal from the U.S.
Following the end of the U.S. military's ban on service by open gays and lesbians, "Don't ask, don't tell," in September 2011, Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, noted that DOMA limited the military's ability to extend the same benefits to military personnel in same-sex marriages as their peers in opposite-sex marriages received, notably health benefits. Same-sex spouses of military personnel are denied the same access to military bases, legal counseling, and housing allowances provided to different-sex spouses.
Political debate
The 2000 Republican Party platform endorsed DOMA in general terms and indicated concern about judicial activism: "We support the traditional definition of 'marriage' as the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages. The Democratic Party platform that year did not mention DOMA or marriage in this context. Both Barr and Clinton later regretted their support and called for DOMA's repeal.
Under the law, no U.S. state or political subdivision is required to recognize a same-sex marriage treated as a marriage in another state. Section 3 of DOMA codifies the non-recognition of same-sex marriage for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, and the filing of joint tax returns. This section has been found unconstitutional in two Massachusetts cases, a California bankruptcy case, and a California class action suit on the part of public employees. The Obama administration announced in 2011 that it had determined that Section 3 was unconstitutional and, though it would continue to enforce the law, it would no longer defend it in court. In response, the House of Representatives undertook the defense of the law on behalf of the federal government in place of the Department of Justice (DOJ).
Text
The main provisions of the act are as follows:
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
Enactment
Georgia Representative Bob Barr, then a Republican, authored the Defense of Marriage Act and introduced it in the House of Representatives on May 7, 1996. Senator Don Nickles of Oklahoma introduced it in the Senate. Its Congressional sponsors stated, "The 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." Nickles said: "If some state wishes to recognize same-sex marriage, they can do so". He said the bill would insure that "the 49 other states don't have to and the Federal Government does not have to. In opposition to the bill, Colorado Rep. Patricia Schroeder said: "You can't amend the Constitution with a statute. Everybody knows that. This is just stirring the political waters and seeing what hate you can unleash. Barr countered that Article IV Sec. 1 of the Constitution grants Congress power to determine "the effect" of the obligation of each state to grant "full faith and credit" to other states' acts.
The 1996 Republican Party platform endorsed DOMA, referencing only Section 2 of the act: "We reject the distortion of [anti-discrimination] laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions. The Democratic Party platform that year did not mention DOMA or marriage. In a June 1996 interview in the gay and lesbian magazine The Advocate, Clinton said: "I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered. He also wrote that "raising this issue is divisive and unnecessary.
Some Democrats viewed the legislation as politically motivated rather than a response to societal developments. Sen. Ted Kennedy of Massachusetts called DOMA the "Endangered Republican Candidates Act and said it was "a mean-spirited form of legislative gay-bashing designed to inflame the public four months before the November election. Gay and lesbian rights organizations found there was little time to lobby in opposition, because the Clinton administration preferred to have DOMA become law as quickly as possible and not become an issue in the fall presidential campaign. Kennedy led an effort to pass hiring and employment protection for gays and lesbians, the Employment Non-Discrimination Act (ENDA), in concert with DOMA, but the effort failed in the Senate by one vote.
The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress, passing by a vote of 85–14 in the Senate[20] and a vote of 342–67 in the House. Democratic Senators voted for the bill 32 to 14 (with Pryor of Arkansas absent), and Democratic Representatives voted for it 188 to 65, with 15 not participating. All Republicans in both houses voted for the bill with the sole exception of the one openly gay Republican congressman, Rep. Steve Gunderson of Wisconsin. On the day it passed the House, a White House spokesman called the legislation "gay baiting". Clinton, who was traveling when Congress acted, signed it into law promptly upon returning to Washington, D.C., on September 21, 1996. The White House released a statement in which Clinton said "that the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation".
Impact
The General Accounting Office issued a report in 1997 identifying "1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor". In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003.[27] With respect to Social Security, housing, and food stamps, the GAO found that "recognition of the marital relationship is integral to the design of the program[s]." The other major categories the GAO identified were veteran's benefits, including pensions and survivor benefits; taxes on income, estates, gifts, and property sales; and benefits due federal employees, both civilian and military. Among many specifics, it noted the rights of the widow or widower of the creator of a copyrighted work and certain financial disclosure requirements that include the spouses of members of Congress and certain officers of the federal government. Education loan programs and agriculture price support and loan programs also implicate spouses. Financial aid to "family farms" is restricted to those in which "a majority interest is held by individuals related by marriage or blood.
Because the federal Employee Retirement Income Security Act (ERISA) controls most employee benefits provided by private employers, DOMA prevents most employers in the private sector from providing health care, pension, and disability benefits to same-sex spouses on an equal footing with opposite-sex spouses. ERISA does not affect employees of state and local government or churches, nor does it extend to such benefits as employee leave and vacation.
Under DOMA, persons in same-sex marriages are not considered married for immigration purposes. U.S. citizens and permanent residents in same-sex marriages can not petition for their spouses, nor can they be accompanied by their spouses into the U.S. on the basis of a family or employment-based visa. A non-citizen in such a marriage can not use it as the basis for obtaining a waiver or relief from removal from the U.S.
Following the end of the U.S. military's ban on service by open gays and lesbians, "Don't ask, don't tell," in September 2011, Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, noted that DOMA limited the military's ability to extend the same benefits to military personnel in same-sex marriages as their peers in opposite-sex marriages received, notably health benefits. Same-sex spouses of military personnel are denied the same access to military bases, legal counseling, and housing allowances provided to different-sex spouses.
Political debate
The 2000 Republican Party platform endorsed DOMA in general terms and indicated concern about judicial activism: "We support the traditional definition of 'marriage' as the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages. The Democratic Party platform that year did not mention DOMA or marriage in this context. Both Barr and Clinton later regretted their support and called for DOMA's repeal.
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