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Defense of Marriage Act

The Defense of Marriage Act (DOMA) was a United States federal law passed by the 104th United States Congress and signed into law by President Bill Clinton on September 21, 1996. It banned federal recognition of same-sex marriage by limiting the definition of marriage to the union of one man and one woman, and it further allowed states to refuse to recognize same-sex marriages granted under the laws of other states.

For other uses, see Defense of marriage amendment.

Long title

An Act to define and protect the institution of marriage

DOMA

September 21, 1996 (1996-09-21)

Pub. L.Tooltip Public Law (United States) 104–199 (text) (PDF)

1 U.S.C. § 7 (Struck down, June 26, 2013)

Congressman Bob Barr and Senator Don Nickles, both members of the Republican Party, introduced the bill that became DOMA in May 1996. It passed both houses of Congress by large, veto-proof majorities. Support was bipartisan, though about a third of the Democratic caucus in both the House and Senate opposed it. Clinton criticized DOMA as "divisive and unnecessary". He nonetheless signed it into law in September 1996.


Section 2 of the act allowed states to deny recognition of same-sex marriages conducted by other states. Section 3 codified non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, social security survivors' benefits, immigration, bankruptcy, and the filing of joint tax returns. It also excluded same-sex spouses from the scope of laws protecting families of federal officers, laws evaluating financial aid eligibility, and federal ethics laws applicable to opposite-sex spouses.[1]: 23–24 


After its passage, DOMA was subject to numerous lawsuits and repeal efforts. In United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process Clause, thereby requiring the federal government to recognize same-sex marriages conducted by the states. In Obergefell v. Hodges (2015), the Court held that same-sex marriage was a fundamental right protected by both the Due Process Clause and the Equal Protection Clause. The ruling required all states to perform and recognize the marriages of same-sex couples, leaving Section 2 of DOMA as superseded and unenforceable. On December 13, 2022, DOMA was repealed by the passage of the Respect for Marriage Act which was signed into law by President Joe Biden, who had previously voted in favor of DOMA as a Senator of Delaware.

Impact[edit]

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".[44] In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003.[45] 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 report also noted several other major program categories that were affected—veterans' benefits, including pensions and survivor benefits; taxes on income, estates, gifts, and property sales; and benefits due federal employees, both civilian and military—and identified specifics such as the rights of the surviving spouse of a creator of copyrighted work and the financial disclosure requirements of spouses of Congress members 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" for example, is restricted to those in which "a majority interest is held by individuals related by marriage or blood."[44]


Because the federal Employee Retirement Income Security Act (ERISA) controls most employee benefits provided by private employers, DOMA removed 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.[46]


Under DOMA, persons in same-sex marriages were not considered married for immigration purposes. U.S. citizens and permanent residents in same-sex marriages could not petition for their spouses, nor could 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 could not use it as the basis for obtaining a waiver or relief from removal from the U.S.[47]


Following the end of the U.S. military's ban on service by open gays and lesbians, "Don't ask, don't tell," 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.[48] Same-sex spouses of military personnel were denied the same access to military bases, legal counseling, and housing allowances provided to different-sex spouses.[49]

(12-13 as BLAG v. Gill)

Gill v. Office of Personnel Management

(12-15 as Dept. of HHS v. Massachusetts, 12-97)

Massachusetts v. United States Department of Health and Human Services

(12-16 OPM v. Golinski)

Golinski v. Office of Personnel Management

(12-63)

Windsor v. United States

(12-231)

Pedersen v. Office of Personnel Management

In re Kandu: A same-sex couple in the state of Washington, who had married in Canada, attempted to file a joint bankruptcy petition, but were not allowed to do so.[169]

[168]

Wilson v. Ake, an unsuccessful attempt by a Florida same-sex couple, married in Massachusetts, to have their marriage license accepted in Florida.

[n 4]

Smelt v. Orange County and Smelt v. United States: In February 2004, Arthur Smelt and Christopher Hammer sued , in federal court for refusing to issue them a marriage license. The district court ruled that the couple did not have standing to challenge Section 2 of DOMA and rejected their challenge to the constitutionality of Section 3. On May 5, 2006, the United States Court of Appeals for the Ninth Circuit dismissed the suit,[171] and on October 10 the United States Supreme Court refused to consider the couple's appeal.[172] On March 9, 2009, the same couple, having legally married in California, filed Smelt v. United States, challenging the constitutionality of DOMA and California's Proposition 8.[173] District Judge David O. Carter dismissed the case on August 24, because the couple had not applied for and been denied any federal benefit and therefore lacked "an injury in fact."[174]

Orange County, California

Bishop v. United States: Two lesbian couples in Oklahoma, one of which couples sought a marriage license and the other to have the state recognize either their Canadian marriage or their Vermont civil union.[176] The court stayed consideration of the case pending the outcome of Windsor. Later it ruled the couple challenging Section 2 did not have standing, but ruled Oklahoma's same-sex marriage ban unconstitutional under Bishop v. Oklahoma.

[175]

LGBT rights in the United States

(2004)

Marriage Protection Act

Same-sex unions in the United States

(2022)

Respect for Marriage Act

. "Same-Sex Marriage: An Issue of Constitutional rights not Moral Opinions". 2004. 27 Harv. Women's L. J. 345.

Feigen, Brenda

Carter, W. Burlette. "The Federal Law of Marriage: Deference, Deviation and DOMA." 2013. 21 Am. U. J. Gender, Soc. Pol'y & L 70;

The 'Federal Law of Marriage': Deference, Deviation, and DOMA

"Same Sex Marriage Passage". CQ Weekly. Congressional Quarterly. May 2, 2005.

"Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage." 2004. 117 Harv. L. Rev. 2684. :10.2307/4093411. JSTOR 4093411.

doi

Manning, Jason (April 30, 2004). . The Online News Hour. The News Hour with Jim Lehrer. Archived from the original on November 9, 2013. Retrieved January 13, 2007.

"Backgrounder: The Defense of Marriage Act"

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.

GovTrack

Library of Congress