Defense of Marriage Act (1996)

Excerpt from the Defense of Marriage Act

In determining the meaning of any Act of Congress, or of any ruling, regulation, or inter pretation 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 wife.

The choice of law provision

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.

The Defense of Marriage Act (DOMA) (P.L. 104-199; 110 Stat. 2419) denies federal recognition to same-sex marriages and authorizes the states to deny such recognition as well. The act has two provisions. One of these defines marriage, for federal purposes, as exclusively heterosexual, thereby depriving same-sex couples of all the federal benefits to which other married couples are entitled. The other provision authorizes individual states to ignore same-sex marriages when they are performed in other states.

The constitutional basis for the provision that defines marriage is simply Congress's power to define the terms of a federal statute. The second provision relies on the "full faith and credit clause" of Article IV, sec. 1, of the U.S. Constitution. This clause, after requiring states to give "full faith and credit" to one another's acts and judicial proceedings, provides that "Congress may by General Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

DOMA was enacted after a 1993 decision by the Hawaii Supreme Court strongly suggested that the state would make same-sex marriage legal. (After DOMA was enacted, the state court's decision was overturned by an amendment to the state constitution.) States usually recognize marriages celebrated in other states, and the federal government usually defers to each state's definition of marriage. But neither of these rules has been understood to be a constitutional requirement. Opponents of same-sex marriage feared that recognition of same-sex marriage would damage the institution of marriage in the United States, and so sought, through DOMA, to create an exception to these ordinary rules. Those who opposed DOMA, noting the unprecedented nature of the federal legislation, thought that it was an unconstitutional abuse of the Article IV power. These opponents emphasized that Congress was responding to a "problem" that did not exist, since no state then recognized same-sex marriages.

DOMA has played an important role in state courts since Vermont recognized the legality of same-sex unions. Vermont Civil Unions, created by statute in 2000, have all the rights and responsibilities of marriage without the name. State courts have cited DOMA when denying recognition to Vermont Civil Unions. For example, Lofton v. Kearney, a 2001 Florida ruling, states that DOMA "precludes homosexuals who marry in other states from being recognized by Florida as a legal union."

Citations such as these, however, appear to rest on an error of law. The full faith and credit clause has never been interpreted to require states to recognize marriages celebrated in other states that are contrary to the public policy of the particular state. DOMA is, in fact, irrelevant to almost any question that is likely to come before a court. The Supreme Court has interpreted the full faith and credit clause to constrain state courts only when the state would violate parties' due process rights by applying its own law to the case.

The Defense of Marriage Act is one episode in a continuing cultural and political battle over the status of same-sex couples. Republican Senator Don Nickles of Oklahoma, one of the original sponsors of DOMA, argued that, because marriage is already traditionally understood to be exclusively heterosexual, the law "merely reaffirm[s] what is already known, what is already in place" (Committee on the Judiciary, U.S. Senate, 104th Cong., 2d Sess., Hearing on Defense of Marriage Act, July 11, 1996). Opponents argue that, if the exclusive heterosexuality of marriage were that obvious, there would have been no need for the statute.

DEFENSE OF MARRIAGE ACT (1996)

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