The 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 restricts federal marriage benefits and required inter-state marriage recognition to only opposite-sex marriages in the United States. The law passed both houses of Congress by large majorities and was signed into law by President Bill Clinton on September 21, 1996. Section 3 of DOMA codifies the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors’ benefits, immigration, and the filing of joint tax returns.
Clinton and key legislators have changed their positions and advocated DOMA’s repeal. 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 Republican leadership of the House of Representatives instructed the House General Counsel to defend the law in place of the Department of Justice (DOJ).
Section 3 of DOMA has been found unconstitutional in eight federal courts, including the First and Second Circuit Court of Appeals, on issues including bankruptcy, public employee benefits, estate taxes, and immigration.[n 1] The U.S. Supreme Court has heard an appeal in one of those cases, United States v. Windsor, with oral arguments on March 27, 2013.
The issue of same-sex marriage attracted mainstream attention infrequently until the 1980s. A sympathetic reporter heard several gay men raise the issue in 1967 and described it as “high among the deviate’s hopes”. In one early incident, gay activist Jack Baker brought suit against the state of Minnesota in 1970 after being denied a marriage license to marry another man, and in Baker v. Nelson the Minnesota Supreme Court ruled that limiting marriage to opposite-sex couples did not violate the United States Constitution. Baker later changed his legal name to Pat Lynn McConnell and married his male partner in 1971, although the marriage was not legally recognized. A 1972 off-Broadway play, Nightride, depicted, in the author’s words, “a black–white homosexual marriage”. In 1979, IntegrityUSA, an organization of gay Episcopalians, raised the issue as the Episcopal Church in the U.S. considered a ban on the ordination of homosexuals as priests.
The New York Times said the question was “all but dormant” until the late 1980s when, according to gay activists, “the AIDS epidemic… brought questions of inheritance and death benefits to many people’s minds.” In May 1989, Denmark established registered partnerships that granted same-sex couples many of the rights associated with marriage. In the same year, New York’s highest court ruled that two homosexual men qualified as a family for the purposes of New York City’s rent-control regulations. Within the movement for gay and lesbian rights, a debate between advocates of sexual liberation and of social integration was taking shape, with Andrew Sullivan publishing an essay “Here Comes the Groom” in The New Republic in August 1989 arguing for same-sex marriage: “A need to rebel has quietly ceded to a desire to belong”, he wrote. In September 1989, the State Bar Association of California urged recognition of marriages between homosexuals even before gay rights advocates adopted the issue.
Gary Bauer, head of the socially conservative Family Research Council, predicted the issue would be “a major battleground in the 1990s”. In 1991, Georgia Attorney General Michael J. Bowers withdrew a job offer made to a lesbian who planned to marry another woman in a Jewish wedding ceremony. In 1993, a committee of the Evangelical Lutheran Church in America released a report asking Lutherans to consider blessing gay marriage and stating that lifelong abstinence was harmful to gay and lesbian couples. The Conference of Bishops responded, “There is basis neither in Scripture nor tradition for the establishment of an official ceremony by this church for the blessing of a homosexual relationship.” In a critique of radicalism in the gay liberation movement, Bruce Bawer’s A Place at the Table (1993) advocated the legalization of same-sex marriage.
In Baehr v. Miike (1993), the Supreme Court of Hawaii ruled that the state must show a compelling interest in prohibiting same-sex marriage. This finding prompted concern among opponents of same-sex marriage that same-sex marriage might become legal in Hawaii and that other states would recognize or be compelled to recognize those marriages under the Full Faith and Credit Clause of the United States Constitution.
- 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.
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, Republican of Oklahoma, introduced it in the Senate. The House Judiciary Committee stated that the Act was intended by Congress to “reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.” The Act’s 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.”
Nickles said, “If some state wishes to recognize same-sex marriage, they can do so”. He said the bill would ensure 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 Full Faith and Credit Clause 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.” In the same year, in response to a citizen’s letter, 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 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 118 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. The sole independent in the House, Bernie Sanders of Vermont, voted against the bill. 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”.
Clinton did not mention the issue in his 2004 autobiography. Over time, Clinton’s personal views on same-sex marriage shifted. In July 2009, he said, “I personally support people doing what they want to do. I think it’s wrong for someone to stop someone else from doing that [gay marriage].” Clinton added that he personally supported same-sex marriage but did not believe it is a “federal question”, stating, “I think all these states that do it should do it.” On March 7, 2013, in an op-ed he wrote for the Washington Post, Clinton urged the Supreme Court, which would shortly hear arguments on United States v. Windsor, to overturn DOMA.
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. 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 removes some tax breaks for employers and employees in the private sector when it comes to 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 cannot 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 cannot 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,” [DADT] 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.