DEFENSE OF MARRIAGE ACT OF 1996

The Defense of Marriage Act (DOMA) (Pub. L. 104-199, Sept. 21, 1996, 110 Stat. 2419) is a federal law that denies federal recognition of same-sex marriages and authorizes states to refuse to recognize same-sex marriages licensed in other states. DOMA was passed out of the fear that a lawsuit in Hawaii would force that state to recognize same-sex marriages. Under the U.S. Constitution's full faith and credit clause (Article IV, Section 1), states are expected to recognize the public acts, records, and judicial proceedings of every other state. Therefore, Congress was alarmed at the prospect of a gay or lesbian couple being married in Hawaii and then going to another state and expecting that state to recognize them as legally married. In addition, Congress did not want to grant same-sex couples the same federal benefits that are given to heterosexual couples who are legally married.

The apparent need for DOMA began after the Hawaii Supreme Court issued a ruling in Baehr v. Lewin, 852 P, 2d 44 (1993). In this case three same-gender couples filed a lawsuit after being denied marriage licenses. The couples alleged the state had acted unconstitutionally because Hawaii's state constitution contains an equal rights provision, which mandates that all persons, regardless of gender, should be given equal protection of the law. The state marriage law did not state that licenses should be issued only to male-female couples. The supreme court agreed that the state marriage law should guarantee same-gender couples equal protection but did not order the state to grant the couples licenses. Instead, the court sent the case back to the lower court of appeals and directed the state to prove that the inequality of marriage rights (in this case, involving same-sex marriages) was justified.

In 1994, the Hawaii legislature changed the marriage law to explicitly state that the contract of marriage applied only to marriages between a man and a woman. Despite this change and the reluctance of the state supreme court to address the issue again, supporters of traditional marriage around the United States voiced concern that same-sex marriage could be legitimized. If this happened in Hawaii it would generate lawsuits in other states from same-gender couples married in Hawaii seeking recognition of their new legal status. These fears intensified when the Hawaii legislature failed in 1996 to pass a proposed constitutional amendment that would overrule the court decision.

In 1996, DOMA was introduced in the House of Representatives by Representative Bob Barr (R-Ga.) and in the Senate by Senator Don Nickles (R-Okla.). It passed the House by a vote of 342–67 and the Senate by a vote of 85–14. President bill clinton signed the act into law on September 21, 1996. Supporters of gay and lesbian rights had no success in stopping DOMA, in part because the vote became a referendum on the idea of "gay marriage." Even liberal Democrats who were staunch supporters of gay and lesbian rights voted for DOMA, arguing that it would be better to give same-gender couples some form of legal recognition short of traditional marriage.

The text of DOMA is very brief and contains only two provisions. The first provision states that no state, territory, or Indian tribe shall be required to legally recognize a "relationship between persons of the same sex that is treated as a marriage under the laws of another state, territory, or Indian tribe." This language tells these jurisdictions that the Full Faith and Credit Clause has no application to same sex marriages.

The second provision directs the federal government to follow a definition of the word marriage that means "only a legal union between one man and one woman as husband and wife." Likewise, the word spouse is defined as a "person of the opposite sex who is a husband or a wife." These definitions are meant to preclude a same-sex couple that has been married in a state from being eligible for federal benefits such as married income tax status and social security survivor benefits. In effect, DOMA bars federal recognition of same-sex marriages through the use of these definitions.

Although opponents of DOMA argued that it violates both the due process clause of the fifth amendment and the Full Faith and Credit Clause they did not file a lawsuit challenging its constitutionality. By 2002, 36 states had passed laws that bar same-sex marriages or the recognition of same-sex marriages formed in other states. Hawaii, the state that started the debate, passed a constitutional amendment in 1998 that gave the legislature the right to decide on the legality of same-sex marriages. In 1999, the Hawaii Supreme Court ruled that the 1998 amendment and the act of the legislature bar-ring same-sex marriages ended the litigation that had been pending since 1993.

Gay and lesbian organizations have shifted their political agenda since DOMA, seeking some lesser form of civil recognition for same-sex couples. Vermont became the first state to enact a law recognizing "civil unions" between same-sex couples (23 V.S.A. § 1201 et seq. [2000]). The 2000 law came in response to a 1999 Vermont Supreme Court ruling that its state constitution required same-sex couples to receive the same benefits and protections given to opposite-sex couples. The court, in Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 (1999), rejected the plaintiffs' claim that as same-sex couples they were eligible for marriage licenses under the marriage statutes. Vermont laws reflected the common understanding that marriage consists of a union between a man and a woman.

However, the court was persuaded by the plaintiffs' constitutional claims. The plaintiffs contended that their ineligibility for a marriage license violated their rights to the common benefit and protection of the law guaranteed by Chapter I, Article 7 of the Vermont constitution. By denying them access to a civil marriage license, the law effectively excluded them from a wide array of benefits and protections, including access to a spouse's medical, life, and disability insurance; hospital visitation, and other medical decision-making privileges; spousal support; the ability to inherit property from the deceased spouse without a will; homestead protections; and over two hundred other statutory items. The court stopped short of legalizing gay marriage, stating that it was up to the legislature to modify the marriage laws, create a parallel domestic partnership system, or create some "equivalent statutory alternative." The legislature responded with the civil union statute.

Some commentators have speculated that couples from other states that are granted a civil union in Vermont may file a lawsuit in their home states challenging the constitutionality of DOMA and state laws barring same-sex marriages.