Defense of Marriage Act
92946
225610346
2008-07-14T15:25:02Z
Zornado
7474689
Changed the Public Law number from 104-190 to the correct 104-199.
{{Infobox U.S. legislation
| fullname=Defense of Marriage Act
| acronym=DOMA
| enacted by=104th
| effectivedate=[[July 17]], [[1990]]
| public law url=http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_laws&docid=f:publ199.104
| cite public law=104-199
| cite statutes at large=110 Stat. 2419 (1996)
| acts amended=
| title amended=
| sections created=
| sections amended=
| leghisturl=http://thomas.loc.gov/cgi-bin/bdquery/z?d104:HR03396:@@@X
| introducedin=[[United States House of Representatives|House of Representatives]]
| introducedbill=H.R. 3396
| introducedby=[[Bob Barr|Robert L. Barr, Jr.]]
| introduceddate=[[May 7]] [[1996]]
| committees=[[United States House Committee on the Judiciary|Committee on the Judiciary]] (Subcommittee on the Constitution)
| passedbody1=[[United States House of Representatives|House]]
| passeddate1=[[July 12]] [[1996]]
| passedvote1=[http://clerk.house.gov/cgi-bin/vote.asp?year=1996&rollnumber=316 Yeas: 342; Nays: 67]
| passedbody2=[[United States Senate|Senate]]
| passeddate2=[[September 10]] [[1996]]
| passedvote2=[http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=2&vote=00280 Yeas: 85; Nays: 14]
| signedpresident=[[Bill Clinton|Clinton]]
| signeddate=[[September 21]] [[1996]]
| amendments=
}}
The '''Defense of Marriage Act''', or '''DOMA''', is the short title of a [[federal law]] of the [[United States]] passed on [[September 21]], [[1996]] as Public Law No. 104-199, 110 Stat. 2419. Its provisions are [[codified]] at {{usc|1|7}} and {{usc|28|1738C}}. The law has two effects:
#No [[U.S. state|state]] (or other [[Political divisions of the United States|political subdivision within the United States]]) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
#The [[Federal Government of the United States|Federal Government]] may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
The bill was passed by [[Congress of the United States|Congress]] by a vote of 85-14 in the [[United States Senate|Senate]][http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=2&vote=00280] and a vote of 342-67 in the [[United States House of Representatives|House of Representatives]][http://clerk.house.gov/evs/1996/roll316.xml], and was signed by [[President of the United States|President]] [[Bill Clinton]] on [[September 21]], [[1996]].
At the time of passage, it was expected that at least one state would soon legalize same-sex marriage, whether by [[legislation]] or [[judicial interpretation]] of either the state or federal [[constitution]]. Opponents of such recognition feared (and many proponents hoped) that the other states would then be required to recognize such marriages under the [[Full Faith and Credit Clause]] of the [[United States Constitution]].
Including the results of the 2006 midterm elections, two states ([[Same-sex marriage in Massachusetts|Massachusetts]] and [[Same-sex marriage in California|California]]) allow same-sex marriage, five states recognize some alternative form of same-sex union, twelve states ban any recognition of any form of same-sex unions including [[civil union]], twenty-five states have adopted amendments to their state constitution prohibiting same sex marriage, and another twenty states have enacted statutory DOMAs.
On May 15, 2008 the California DOMA was found unconstitutional by the California Supreme Court as a violation of equal protection; the decision came into effect on [[June 16]], [[2008]].[http://www.latimes.com/news/local/la-me-gaymarriage16-2008may16,0,6182317.story][http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/06/04/BA8V1137HS.DTL] A proposed constitutional amendment overriding the Court's decision has been placed on the 2008 California general election ballot.[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/04/25/MNIF10BFT8.DTL][http://www.nomcalifornia.org/site/apps/nlnet/content2.aspx?c=htJSJaMQIuE&b=4015679&content_id={A4B9EB0E-FED8-4891-875E-E5B88C7DEC13}¬oc=1]
==Text==
The following excerpts are the main provisions of the Act:
;'''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.
;'''Definition of 'marriage' and 'spouse':'''
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.”[http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396.enr:]
==Legal history==
In the 1993 case [[Baehr v. Lewin]], The [[Hawaii State Supreme Court]] ruled that the state must show a compelling interest in prohibiting [[same-sex marriage]]. This prompted concern among opponents of same-sex marriage that the state might legalize it, and that eventually other states would recognize same-sex marriages performed in Hawaii. The Defense of Marriage Act is designed specifically to "quarantine" same-sex marriage and prevent states from being required to recognize the marriage of same-sex couples in other states.
DOMA was authored by Georgia Representative Bob Barr, then a Republican. Barr has since resigned from the GOP and recently received the 2008 Libertarian Party nomination for president. As a precondition for receiving the nomination, Barr was required to publicly apologize for his authorship of DOMA and to openly call for its full repeal.{{fact|date=July 2008}} Some libertarian commentators have been critical of Barr's current explanation of his record regarding DOMA.{{fact|date=July 2008}}
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 [[United States Republican Party|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." [http://www.lectlaw.com/files/leg23.htm]
The [[legislative history]] of the bill asserts authority to enact the law under [[Article Four of the United States Constitution#Section 1: Full faith and credit|Article IV Sec. 1]], which grants Congress power to determine "the effect" of such full faith and credit. Proponents made clear their purpose to normalize [[heterosexual]] marriage on a federal level and to permit each state to decide for itself whether to recognize [[same-sex marriage|same-sex unions]] concluded in another state. Opponents variously question whether the power asserted extends so far as to permit non-recognition altogether, argue that the law is unconstitutionally vague by leaving out essential details, assert a constitutional right to same-sex marriage, or some combination of the three.
Although Clinton signed the Defense of Marriage Act into law during his re-election campaign in [[U.S. presidential election, 1996|1996]] and opposed same-sex marriage, he did not mention the law (or the controversy surrounding it) in his [[2004]] memoir, ''[[My Life (Bill Clinton autobiography)|My Life]]''.
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." [http://web.archive.org/web/20050208184130/http://www.advocate.com/html/stories/824/824_clinton_710.asp]
==Constitutionality==
The constitutional issues most relevant to DOMA are the [[Due Process]] and [[Equal Protection Clause]]s of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]], which is concerned with the definition section of DOMA and the [[Full Faith and Credit Clause]], which is primarily concerned with the second section of DOMA.
A right to marriage, overriding the provisions of state law, was found in ''[[Loving v. Virginia]]''. The [[Full Faith and Credit Clause]] of the United States Constitution obligates states to give "Full Faith and Credit ... to the public Acts, Records, and judicial Proceedings of every other State." The Effects Clause (Art IV, § 1) grants Congress the authority to "prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." Whether DOMA is an appropriate exercise of this power is disputed.
Critics of DOMA argue that the law is unconstitutional on several grounds:
*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 appealed to the [[Supreme Court of the United States|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 [[California]] and [[Massachusetts]] have issued licenses for same-sex marriages.
DOMA Section 2 is occasionally argued to be unnecessary, regardless of whether it is constitutional. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to apply the law 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]].
Constitutional objections to DOMA might be rendered moot by amendment of the Constitution or by stripping courts of jurisdiction to rule on the case. In response to the growing number of legal and political challenges, some proponents of DOMA have proposed the [[Federal Marriage Amendment]] to the U.S. Constitution. The strongest version of a [[Federal Marriage Amendment]] would override any possible application of the Full Faith and Credit clause to same-sex partnerships, marriages or civil unions in other states and would permanently prohibit both the federal and state governments from recognizing same-sex unions.{{Fact|date=January 2007}} It would also prevent any state from legalizing same-sex marriages entered into within the state. Another alternative, endorsed by the 2004 [[United States Republican Party|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.
Despite all such arguments, no attempt to challenge the law has even reached the Supreme Court, and all lower court rulings have upheld the constitutionality of the law.{{Fact|date=February 2008}} With most states deciding for themselves the status of gay marriage, the Defense of Marriage Act may have largely become moot.
==DOMA and state legislation==
Since the passage of DOMA, there has been an increased focus on the variety among states with regard to the legal status of same sex marriage. Some states have proactively, by legislation or referendum, determined that they will not recognize same-sex marriages{{Fact|date=June 2008}}.
Opponents of same-sex marriage assert that the issue should be decided democratically through the legislative process, rather than through the judicial process. Under this view, it is proper to use the DOMA and/or the "public policy exception" to the Full Faith and Credit clause to allow states to reject another state's recognition of same-sex marriage, because the will of the voters would be defeated if all states were required to recognize same-sex marriages contracted in any state that allows them, or if such marriages were recognized by the federal courts as a [[fundamental right]]{{Fact|date=June 2008}}.
Gay rights advocates, conversely, feel that the democratic process is denying them a fundamental right. Since the system of checks and balances in the United States leaves it to the judiciary to protect the fundamental rights of minority groups against the tyranny of the majority, advocates believe that the judiciary should strike down gender restrictive marriage laws in the same way they struck down racially restrictive marriage laws. Under this view, there is no objection to the use of full faith and credit as a tactic to force the issue{{Fact|date=June 2008}}.
Both supporters and opponents of same-sex marriage accuse the other side of trying to "legislate morality." {{Fact|date=June 2008}}
Currently Massachusetts and California are the only states that recognize same-sex marriages. The majority of the states including those that have some representation of same sex relationships, have DOMA adopted as state law, have some law defining marriage according to DOMA, or have an amendment to their state constitution with the effect of DOMA. Some states recognize civil unions to represent same sex relationships, considering them equivalent to marriage. Other states have domestic partnerships in place to represent same sex relationships, but are not equivalent to marriage {{Fact|date=June 2008}}.
Including the results of the 2006 Midterm Elections, twenty-six states have enacted constitutional amendments have defined marriage as between a man and a woman, and another twenty states have enacted statutory DOMAs {{Fact|date=June 2008}}.
==See also==
* [[Marriage Protection Act]]
* [[Same-sex unions in the United States]]
* [[Same-sex marriage in the United States]]
* [[LGBT rights in the United States]]
* [[Baker v. Nelson]]
==References==
* Feigen, Brenda. “Same-Sex Marriage: An Issue of Constitutional rights not Moral Opinions.” 2004. 27 Harv. Women’s L. J. 345.
* “Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage.” 2004. 117 Harv. L. Rev. 2684.
* {{cite web |url=http://www.pbs.org/newshour/bb/law/gay_marriage/act.html |title=Backgrounder: The Defense of Marriage Act |accessdate=2007-01-13 |first=Jason|last=Manning |date=2004-04-30 |work=The Online News Hour |publisher=The News Hour with Jim Lehrer}}
* “Same Sex Marriage in the U.S.” About.com. 2005. About, Inc. 1 June 2004.
* “Same Sex Marriage Passage” CQ Weekly. Congressional Quarterly. 2 May 2005.
* United States. 104th Congress. Defense of Marriage Act. House of Representatives Committee Report. 1996.
* Wardle, Lynn D. “A Critical Analysis of Constitutional Claims for Same Sex Marriage.” 1996. 1996 B.Y.U.L. Rev. 1.
==External links==
* {{cite wikisource|Defense of Marriage Act}}
*[http://www.lectlaw.com/files/leg23.htm Summary and analysis] at Lectric Law
*[http://marriagelaw.cua.edu/Law/states/doma.cfm State Defense of Marriage Acts] — state-by-state summary
*[http://clerk.house.gov/evs/1996/roll316.xml House roll call vote]
*[http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=2&vote=00280 Senate roll call vote]
*[http://uspolitics.about.com/library/bl_gay_marriage_2004.htm About.com state-by-state list]
*[http://www.govtrack.us/congress/bill.xpd?bill=h104-3396 GovTrack]
*[http://thomas.loc.gov/cgi-bin/bdquery/z?d104:h.r.03396: THOMAS (Library of Congress)]
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[[Category:LGBT law in the United States]]
[[Category:Same-sex marriage in the United States]]
[[Category:1996 in law]]
[[Category:United States federal legislation]]
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