History of DOMA
The Defense of Marriage Act is a federal law that has imposed on the rights of LGBT citizens since it was passed in 1996. In short, DOMA does two things: it prevents the federal government from recognizing state-sanctioned relationships between people of the same gender, and it allows the individual states to not recognize such relationships. (Normally, each state respects all American marriages created outside its borders.)
There are over 1,100 rights and responsibilities granted to married couples by the federal government alone. Because of DOMA, same-sex couples go without these rights even when their states recognize their relationships either through marriage or some other arrangement such as a civil union. This discrimination has had far-reaching effects on gay and lesbian families, and while the current President and many congressional leaders have promised to repeal DOMA, its supporters are waging an all-out campaign to keep it on the law books.
Establishment of DOMA
Hawaii is well known for its beautiful beaches, awesome surf, and as the birthplace of the United States’ 44th President. It was also the starting point for the national debate on gay marriage. In 1993, the Hawaii Supreme Court captured the nation’s attention when it ruled that the state could not discriminate against same-sex couples in its marriage laws without giving a good reason—it had to prove that doing so was in Hawaii’s best interest.
If equal marriage became a reality in Hawaii, existing Constitutional law implied that the other states would acknowledge Hawaiian same-sex spouses the same way they acknowledge other out-of-state married couples. DOMA was written to create a special exception for gay and lesbian partners, denying them the federal rights given to all other couples married under their home state’s laws, and permitting any other state to ignore their marriage license for all legal purposes.
Hawaii never offered gay marriage; the judge issued a stay on the order and eventually a new amendment to the State Constitution banned gay marriage outright. Three years later an overwhelming majority of Republicans and Democrats in Congress passed the Defense of Marriage Act. President Bill Clinton signed DOMA into law shortly after it was passed by Congress.
Compared to most legislation that passes Congress, DOMA is relatively short. It states in two sections:
Section 1 - 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.
Pub. L. 104-199, sec 1, 100 Stat. 2419 (Sep. 21, 1996), codified at 1 U.S.C. § 7 (1997).
Section 2 - 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.
Pub. L. 104-199 sec. 2, 100 Stat. 2419 (Sep. 21, 1996), codified at 28 U.S.C. § 1738C (1997).
With these two paragraphs, the United States codified into law discrimination against gay and lesbian couples, denying them nearly 1,100 rights and responsibilities given to heterosexual couples by the legal recognition of their marriage.
Effects of DOMA
Even now that several states have legalized gay marriage or enacted alternatives such as domestic partnerships and civil unions, DOMA has prevented the federal government from recognizing any of these relationships. This affects gay and lesbian families on issues from finance and savings to health and safety.
DOMA means different things to different families. For some, it means not being able to draw on a spouse’s pension or Social Security check, creating dire financial problems for widows and widowers. For others, it means having to live apart from one’s partner or leave the United States, since residency is more difficult to achieve. Sometimes it means sitting alone in a hospital waiting room while one’s husband or wife is recovering from an accident, unable to comfort them or make important medical decisions because only legal relatives are allowed in.
DOMA further complicates things in states like Massachusetts, Vermont, Connecticut, and California, where gay and lesbian spouses are legally recognized and required to file tax returns as a family. While their home states require such couples to file as “Married”, they must file their federal returns as “Single”. This process is complicated and confusing, often costs the families a great deal of money and time in preparing the additional returns, and can result in additional tax obligations.
Gay and lesbian families face other barriers when they travel across the United States. While their home state might recognize their relationship, other states they visit may not. The issue of medical care alone can be a headache. Meanwhile heterosexual couples will find their relationship fully recognized and supported not only by state law but by the federal government as well.
When Canada first legalized gay marriage, Americans who married there felt the effects of DOMA as they returned home. While heterosexual spouses were able to enter the country as a family without any problems, U.S. Customs officials were bound by DOMA to refuse recognition of the same-sex spouses, and the newlywed couples were forced to enter the country as individuals instead of families.
Changing Views
It may have been the law of the land for the past twelve years, but the view of DOMA has changed greatly in that time. Whether it is because they support the recognition of gay and lesbian families in legal marriage, or disagree with the principles of DOMA in regards to its legitimacy within our nation’s legal framework, many leaders across the United States have come to oppose it.
One of the more recent—and surprising—opponents of DOMA has been Bob Barr, recently the Libertarian candidate for President in 2008, and former Republican Congressman from Georgia. Barr was the law’s original author and primary supporter in 1996, and within the last year has publicly called for its repeal. Speaking on DOMA at the 2008 national Libertarian convention, he stated:
"The Defense of Marriage Act insofar has provided the federal government a club to club down rights of law-abiding American citizens, has been abused, misused, and should be repealed, and I will work to repeal it."
President Obama spoke out on the issue when he arrived in the Senate as the Senator from Illinois. His statement was simple and direct: “Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does.” As part of his campaign for President, he included his support for a full repeal as an official policy position.
While the Republican National Committee continues to fully support DOMA in its platform, and even calls for the passage of a Constitutional amendment to ban gay marriage in every state, the Democratic National Committee included the call to repeal DOMA in its 2008 platform. Leading Democratic members of Congress have issued their own calls for its repeal.
Speaker of the House Nancy Pelosi was recently asked about the repeal of DOMA and President Obama’s position. In 1996, Pelosi was one of the 67 members of the House of Representatives to vote No on DOMA. When asked if she supported its repeal, she gave an unequivocal one-word response:
"Yes."
The Future of DOMA
With the leadership of the President and Speaker of the House, it would be easy to assume that DOMA’s days are numbered. Similar feelings abounded in California when Proposition 8 first began to heat up during the summer of 2008. Surely liberal California would vote against a statewide version of this discriminatory law?
As millions of Californians found to their sorrow on the morning of November 5, 2008, the fight against measures like DOMA is never a sure thing.
Leaders of the movement supporting DOMA have taken notice of the opposition and are mobilizing to prevent the law from being repealed. The National Organization for Marriage has initiated write-in and phone campaigns to members of Congress opposing the repeal. They and organizations like Protect Marriage, which was a key supporter of California’s Proposition 8, are working to make sure Congress does not repeal DOMA.
The fight to repeal DOMA will not be easy, and it is not a guaranteed success. We will have to work together as a community to make sure it happens. As California learned in the last year, there is no certain victory when it comes to the recognition of gay and lesbian families.
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