Defense of Marriage Act
From Wikipedia, the free encyclopedia
The Defense of Marriage Act, or DOMA, is the commonly-used name of a federal law of the United States that is officially known as Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996) and codified at and . The law has two effects.
- No state (or other political subdivision within the United States) need recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state.
- The Federal Government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states.
The bill was passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives, and was signed by 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, six states currently have established laws recognizing either same-sex marriage or some alternative form of same-sex union, twelve states ban any recognition of any form of same-sex unions including civil union, twenty-six states have adopted amendments to their state constitution prohibiting same sex marriage, and another twenty states have enacted statutory DOMAs.
Contents |
[edit] 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.”
[edit] 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.
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." [1]
The legislative history of the bill asserts authority to enact the law under 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 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 1996 and opposed same-sex marriage, he did not mention the law (or the controversy surrounding it) in his 2004 memoir, 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." [2]
[edit] Constitutionality
The constitutional issues most relevant to DOMA are the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which is concerned with the definition section of DOMA and the Full Faith and Credit Clause, which is primarily concerned with the first section of DOMA.
Opponents claim the Equal Protection clause of the Fourteenth Amendment introduces an issue of discrimination against the same sex couples. However, DOMA proponents counter gays have the same right to marry a person of the opposite sex that heterosexuals have. The Due Process clause of the Fourteenth Amendment introduces the issue of the fundamental right to marriage.
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 Effect" which the laws of one state have in another.
The Full Faith and Credit Clause also gives Congress the power to "prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." The first section of DOMA is an example of Congress exerting its power to “prescribe the manner” in which marriage law shall be proved. However the first section of DOMA also conflicts with the charge to the states to respect the laws of the other states, by giving states the ability to disregard the laws of other states regarding marriage.
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 2006.
DOMA may be largely unnecessary, regardless of whether it 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.
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.[citation needed] It would also prevent any state from legalizing same-sex marriages entered into within the state. 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, but the U.S. Constitution gives the Congress the power to determine what areas of public policy are within the courts purview.
DOMA might still have an effect with regard to judgments based on same-sex marriages. For example, suppose a Massachusetts resident is hit by a driver visiting from Maine. The Massachusetts man's husband successfully sues the Maine driver for loss of consortium in Massachusetts and is awarded money damages. If the husband tries to collect his money in Maine, can Maine refuse to enforce the Massachusetts judgment? Federal courts have held that the "public policy exception" to full faith and credit does not apply to judgments. Thus, a state must normally enforce a final judgment even if the judgment violates the state's public policy. Legal experts disagree on whether the "effects" clause allows Congress to grant states the right to ignore foreign judgments.
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.
[edit] 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.
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.
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.
Both supporters and opponents of same-sex marriage accuse the other side of trying to "legislate morality."
Currently Massachusetts is the only state that recognizes 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, which are equivalent to marriage. Other states have domestic partnerships in place to represent same sex relationships, but are not equivalent to marriage.
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.
[edit] See also
- Marriage Protection Act
- Category:Same-sex marriage in the United States
- Same-sex marriage in the United States
- Gay rights in the United States
[edit] External links
- Summary and analysis at Lectric Law
- State Defense of Marriage Acts — state-by-state summary
- House roll call vote
- Senate roll call vote
- [3]
[edit] 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.
“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.
| Same-sex marriage in the United States |  |
||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
|||||||||||||
