Defense of Marriage Act

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Defense of Marriage Act
Great Seal of the United States.
Long title An Act to define and protect the institution of marriage
Colloquial acronym(s) DOMA
Enacted by the  104th United States Congress
Effective September 21, 1996
Public Law 104-199
Stat. 110 Stat. 2419 (1996)
Title(s) amended 1 U.S.C. General Provisions
28 U.S.C. Judiciary and Judicial Procedure
U.S.C. sections created 28 U.S.C. § 1738C,
1 U.S.C. § 7 (Struck down, June 26, 2013)
Legislative history
United States Supreme Court cases
United States v. Windsor, 570 U.S. ___ (2013), (Docket No. 12-307), in which Section 3 (1 U.S.C. § 7) was struck down by the Supreme Court on June 26, 2013

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 allows states to refuse to recognize same-sex marriages granted under the laws of other states. Until Section 3 of the Act was ruled unconstitutional in 2013, DOMA, in conjunction with other statutes, had barred same-sex married couples from being recognized as "spouses" for purposes of federal laws, effectively barring them from receiving federal marriage benefits. DOMA's passage did not prevent individual states from recognizing gay marriage, but it imposed constraints on the benefits received by all legally married gay couples.

Initially introduced in May 1996, DOMA passed both houses of Congress by large, veto-proof majorities and was signed into law by President Bill Clinton in September 1996. By defining "spouse" and its related terms to signify a heterosexual couple in a recognized marriage, 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, as well as excluding same-sex spouses from the scope of laws protecting families of federal officers (18 U. S. C. §115), laws evaluating financial aid eligibility, and federal ethics laws applicable to opposite-sex spouses.[1]:23–24

Clinton – along with key legislators – later advocated for DOMA's repeal. The Obama administration announced in 2011 that it had concluded Section 3 was unconstitutional and, though it would continue to enforce the law while it existed, it would no longer defend it in court. In United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process Clause of the Fifth Amendment.[1]

On July 18, the Bipartisan Legal Advisory Group (BLAG), which had mounted a defense of Section 3 when the administration declined to, acknowledged that in Windsor "[t]he Supreme Court recently resolved the issue of DOMA Section 3's constitutionality" and said "it no longer will defend that statute."[2]


The issue of legal recognition 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".[3] 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.[4][5] A 1972 off-Broadway play, Nightride, depicted, in the author's words, "a black–white homosexual marriage".[6][n 1] 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.[7][n 2]

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."[8] In May 1989, Denmark established registered partnerships that granted same-sex couples many of the rights associated with marriage.[8] 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.[8] 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.[5] In September 1989, the State Bar Association of California urged recognition of marriages between homosexuals even before gay rights advocates adopted the issue.[8]

Gary Bauer, head of the socially conservative Family Research Council, predicted the issue would be "a major battleground in the 1990s".[8] 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.[9] 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."[10] 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.[11]

In Baehr v. Miike (1993), the Supreme Court of Hawaii ruled that the state must show a compelling interest in prohibiting same-sex marriage.[12] 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. The House Judiciary Committee's 1996 Report called for DOMA as a response to Baehr, because "a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits".[13]


The main provisions of the act were as follows:[14]

Section 1. Short title
This Act may be cited as the "Defense of Marriage Act".
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 (ruled unconstitutional by the Supreme Court)
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.[15] 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"; this "moral disapproval" was cited by Justice Elena Kagan as evidence that the law was discriminatory in its intent.[16] 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."[17]

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."[15] 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."[15] Barr countered that the 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.[15]

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."[18] The Democratic Party platform that year did not mention DOMA or marriage.[19] 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."[20] But he also wrote that DOMA was "divisive and unnecessary."[21]

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"[22] and said it was "a mean-spirited form of legislative gay-bashing designed to inflame the public four months before the November election."[23] 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.[23]

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[24] and a vote of 342–67 in the House.[25] 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.[26] 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".[27]

Though his official political position was against gay marriage, Clinton criticized DOMA as "unnecessary and divisive",[28] while his press-secretary called it "gay baiting, plain and simple".[29][30] However, after Congress had passed the bill with enough votes to override a presidential veto,[30] Clinton signed DOMA. He claims that he did so reluctantly in view of the veto-proof majority, both to avoid associating himself politically with the then-unpopular cause of gay marriage, and to defuse momentum for a proposed Federal Amendment to the U.S. Constitution banning gay marriage.[30][31] Clinton, who was traveling when Congress acted, signed it into law promptly upon returning to Washington, D.C., on September 21, 1996; he refused to hold a signing ceremony for DOMA and did not allow photographs to be taken of him signing it into law.[22] 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".[22] In 2013, Mike McCurry, the White House press secretary at the time, recalled that "His (Clinton's) posture was quite frankly driven by the political realities of an election year in 1996."[30] James Hormel, who was appointed by Clinton as the first openly gay U.S. Ambassador, described the reaction from the gay community to Clinton signing DOMA as shock and anger.[32] On Hormel's account, Clinton had been the first President to advocate gay rights, push for AIDS funding, and appoint open LGBT people to his Administration. Thus his signing of DOMA was viewed by much of the community as a great betrayal.

Clinton did not mention DOMA in his 2004 autobiography.[33] Over time, Clinton's personal views on same-sex marriage shifted. He spoke out against the passage of California's Proposition 8 and recorded robocalls urging Californians to vote against it.[34] In July 2009, he officially came out in support for gay marriage[35][36] 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.[37][38]


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".[39] In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003.[40] 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 veterans' 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."[39]

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.[41]

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.[42]

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.[43] Same-sex spouses of military personnel were denied the same access to military bases, legal counseling, and housing allowances provided to different-sex spouses.[44]

Political debate[edit]

The 2000 Republican Party platform endorsed DOMA in general terms and indicated concern about judicial activism: "We support the traditional definition of 'marriage' as the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages.[45] The Democratic Party platform that year did not mention DOMA or marriage in this context.[46]

Bush administration[edit]

In 2004, President George W. Bush endorsed a proposed constitutional amendment to restrict marriage to opposite-sex couples because he thought DOMA vulnerable: "After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity."[47] In January 2005, he said he would not lobby on its behalf, since too many U.S. senators thought DOMA would survive a constitutional challenge.[48]

Obama administration[edit]

President Barack Obama's 2008 political platform endorsed the repeal of DOMA.[49][50] On June 12, 2009, the Justice Department issued a brief defending the constitutionality of DOMA in the case of Smelt v. United States, continuing its longstanding practice of defending all federal laws challenged in court.[51] On June 15, 2009, Human Rights Campaign President Joe Solmonese wrote an open letter to Obama that asked for actions to balance the DOJ's courtroom position: "We call on you to put your principles into action and send legislation repealing DOMA to Congress."[52] A representative of Lambda Legal, an LGBT impact litigation and advocacy organization, noted that the Obama administration's legal arguments omitted the Bush administration's assertion that households headed by opposite-sex spouses were better at raising children than those headed by same-sex spouses.[51]

On February 23, 2011, Attorney General Eric Holder released a statement regarding lawsuits challenging DOMA Section 3. He wrote:[53]

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.

He also announced the administration intended to enforce the law, as distinct from defending it in court, "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."[53]

In a separate letter to Speaker of the House John Boehner, Holder noted that Congress still had the ability to participate in these lawsuits in lieu of the Justice Department.[54]

On February 24, the Department of Justice notified the First Circuit Court of Appeals that it would "cease to defend" Gill and Massachusetts as well.[55] On July 1, 2011, the DOJ, with a filing in Golinski, intervened for the first time on behalf of a plaintiff seeking to have DOMA Section 3 ruled unconstitutional, arguing that laws that use sexual orientation as a classification need to pass the court's intermediate scrutiny standard of review.[56] The DOJ made similar arguments in a filing in Gill on July 7.[57]

In June 2012, filing an amicus brief in Golinski, two former Republican Attorneys General, Edwin Meese and John Ashcroft, called the DOJ's decision not to defend DOMA Section 3 "an unprecedented and ill-advised departure from over two centuries of Executive Branch practice" and "an extreme and unprecedented deviation from the historical norm".[58]

Congressional intervention[edit]

On March 4, 2011, Boehner announced plans to convene the Bipartisan Legal Advisory Group (BLAG) to consider whether the House of Representatives should defend DOMA Section 3 in place of the Department of Justice,[59][60] and on March 9 the committee voted 3–2 to do so.[61]

On April 18, 2011, House leaders announced they had selected former United States Solicitor General Paul Clement to represent BLAG,[62] and Clement, without opposition from other parties to the case, filed a motion to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA.[63][64] On April 25, 2011, King & Spalding, the law firm through which Clement was handling the case, announced it was dropping the case. On the same day, Clement resigned from King & Spalding in protest and joined Bancroft PLLC, which took on the case.[65] The House's initial contract with Clement capped legal fees at $500,000,[66] but on September 30 a revised contract raised the cap to $1.5 million.[67] A spokesman for Boehner explained that BLAG would not appeal in all cases, citing bankruptcy cases that are "unlikely to provide the path to the Supreme Court....[E]ffectively defending [DOMA] does not require the House to intervene in every case, especially when doing so would be prohibitively expensive."[68]

Repeal proposals[edit]

On September 15, 2009, three Democratic members of Congress, Jerrold Nadler of New York, Tammy Baldwin of Wisconsin, and Jared Polis of Colorado, introduced legislation to repeal DOMA called the Respect for Marriage Act. The bill had 91 original co-sponsors in the House of Representatives[69][70] and was supported by Clinton, Barr, and several legislators who voted for DOMA.[71] Congressman Barney Frank and John Berry, head of the Office of Personnel Management, did not support that effort, stating that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management filed by Gay & Lesbian Advocates & Defenders (GLAD).[72][73]

Following Holder's announcement that the Obama Administration would no longer defend DOMA Section 3 in court, on March 16, 2011, Senator Dianne Feinstein introduced the Respect for Marriage Act in the Senate again[74] and Nadler introduced it in the House.[75] The Senate Judiciary Committee voted 10–8 in favor of advancing the bill to the Senate floor, but observers believed it would not gain the 60 votes needed to end debate and bring it to a vote.[76]

After the Supreme Court struck down DOMA Section 3 on June 26, 2013, Feinstein and Nadler reintroduced the Respect for Marriage Act as S. 1236 and H.R. 2523.

Challenges in federal court[edit]

Numerous plaintiffs have challenged DOMA. Cases from the middle of the first decade of the 21st century upheld the law:

  • 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.[77][78]
  • Wilson v. Ake, an unsuccessful attempt by a Florida same-sex couple, married in Massachusetts, to have their marriage license accepted in Florida.[n 3]

Later cases focused on Section 3's definition of marriage. The courts, using different standards, have all found Section 3 unconstitutional. Requests for the Supreme Court to hear appeals were filed in five cases, listed below (with Supreme Court docket numbers):

Golinski v. Office of Personnel Management[edit]

Golinski v. Office of Personnel Management is a challenge to Section 3 of DOMA in federal court based on a judicial employee's attempt to receive spousal health benefits for her wife. In 2008, Karen Golinski, a 19-year employee of the Ninth Circuit Court of Appeals, applied for health benefits for her wife. When the application was denied, she filed a complaint under the Ninth Circuit's Employment Dispute Resolution Plan. Chief Judge Alex Kozinski, in his administrative capacity, ruled in 2009 that she was entitled to spousal health benefits,[80] but the Office of Personnel Management (OPM) announced that it would not comply with the ruling.

On March 17, 2011, U.S. District Judge Jeffrey White dismissed the suit on procedural grounds but invited Golinski to amend her suit to argue the unconstitutionality of DOMA Section 3,[81] which she did on April 14.[82] Following the Attorney General's decision to no longer defend DOMA,[53] the Bipartisan Legal Advisory Group (BLAG), an arm of the House of Representatives, took up the defense. Former United States Solicitor General Paul Clement filed, on BLAG's behalf, a motion to dismiss raising arguments previously avoided by the Department of Justice: that DOMA's definition of marriage is valid "because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children."[83][84] On July 1, 2011, the DOJ filed a brief in support of Golinski's suit, in which it detailed for the first time its case for heightened scrutiny based on "a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities" and its arguments that DOMA Section 3 fails to meet that standard.[56][85]

On February 22, 2012, White ruled for Golinski, finding DOMA "violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution." He wrote that Section 3 of DOMA could not pass the "heightened scrutiny" or the "rational basis" test. He wrote,[86]

The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

While the case was on appeal to the Ninth Circuit, on July 3, 2012, the DOJ asked the Supreme Court to review the case before the Ninth Circuit decides it so it can be heard together with two other cases in which DOMA Section 3 was held unconstitutional, Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services.[87] The Supreme Court chose to hear Windsor instead of these cases, and following the Supreme Court decision in Windsor the Ninth Circuit dismissed the appeal in Golinski with the consent of all parties on July 23.[88]

Gill and Massachusetts[edit]

On March 3, 2009, GLAD filed a federal court challenge, Gill v. Office of Personnel Management, based on the Equal Protection Clause and the federal government's consistent deference to each state's definition of marriage prior to the enactment of DOMA. The case questioned only the DOMA provision that the federal government defines marriage as the union of a man and a woman.[89][90] On May 6, 2010, Judge Joseph L. Tauro heard arguments in the U.S. District Court in Boston.[91]

On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Massachusetts v. United States Department of Health and Human Services, challenging the constitutionality of DOMA. The suit claims that Congress "overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people."[92] Tauro, the judge also handling Gill, heard arguments on May 26, 2010.[93]

On July 8, 2010, Tauro issued his rulings in both Gill and Massachusetts, granting summary judgment for the plaintiffs in both cases.[94][95] He found in Gill that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In Massachusetts he held that the same section of DOMA violates the