THE DEFENSE OF MARRIAGE ACT
What is the Defense of Marriage Act?
The United States government specifically excludes one group of Americans from certain rights that all other Americans enjoy. Additionally, 41 of the 50 states deny rights to that same group. Although this may sound reminiscent of Jim Crow laws from the first half of the twentieth century, this discrimination is happening in America today. There is a twenty first century federal law, and a vast number of twenty first century state laws that discriminate against gays and lesbians and their attempts to marry. Members of the Lesbian, Gay, Bisexual and Transgender community are the only people in America who are legally discriminated against in something as simple as their right to get married. How is this possible?
On May 7, 1996, House Bill 3396 was introduced in Congress; its purpose was to allow states to disregard same-sex marriages formed in other states. Ultimately, the law was passed by an overwhelming majority (Senate: 85 for 14 against; House: 342 for 67 against) and signed into law by President Clinton in the middle of the night on Saturday, September 21, 1996. Called the Defense of Marriage Act or DOMA (Public Law No. 104-19, 100Stat. 2419, codified at 1 U.S.C. §7 and 2 U.S.C. §1738), it reads as follows:
Section 2: “No State …shall be required to give effect to any public act, record, or judicial proceeding of any other State…respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State…or a right or claim arising from such relationship.”
Thus, for the purpose of recognizing out of state same-sex marriages, DOMA suspends something called the full faith and credit clause of the US Constitution and allows one state to ignore a same-sex marriage formed in another state.
Section 3: “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.”
Thus, the federal government and all of its agencies, under congressional law, will only recognize opposite sex marriages for the purpose of all federal benefits, such as social security spousal benefits, income tax returns, the family medical leave act, and anyone of the hundreds of laws…by some estimates as many as 1100 rights…that vest upon marriage.
How did this happen in America and with such overwhelming and enthusiastic support from a large majority of Americans? We have to go back to the early 1990s and a test case that occurred in Hawaii.
Why was the Defense of Marriage Act passed?
At the Hawaii Department of Health in December 1990, three couples filed marriage license applications. These were valid applications in all respects except that the applicants were same sex couples. The Hawaii Department of Health denied these applications. The case, known as Baehr vs. Lewin, (852 P. 2d 44) was heard by the Hawaii Supreme Court, which decided in May 1993, that the state's denial of the rights and incidents of marriage to same-sex couples represented a denial of equal protection. (NOTE: The court found sex was a ‘suspect’ classification under the equal protection clause of the Hawaii Constitution. When laws limit the rights of certain groups, called “suspect classes” which include racial and religious minorities, states must have very strong reasons, called “compelling interests,” to limit said rights. Some states treat laws that are influenced by the gender of individuals as suspect, as Hawaii did in this case.) The court listed ‘a multiplicity of rights and benefits’ that accompany a marriage license; to deny these rights was a denial of equal protection.
The Baehr decision was historic. Significantly, this was the first time the highest court in a state questioned the constitutionality of the denial of marriage to same-sex couples. Although some people still believe that same-sex marriages are legal in Hawaii that is not the holding of Baehr. The Baehr court merely required the state to justify the denial of marriage licenses to same-sex couples by a compelling interest.
The Baehr decision was significant in another way; it mobilized a massive coalition of forces against same sex marriage. In the wake of Baehr, many Americans feared same-sex couples would flock to Hawaii, obtain marriage licenses, and populate the country. States would be forced to recognize these unions under the full faith and credit clause of the U.S. Constitution. The House Report in support of the Defense of Marriage Act states the original bill was “inspired…by the implications that lawsuit [Baehr] threatens to have on the other States and on federal law.” The ultimate fear is stated within the same Report: “Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal recognition of their unions.”
What was the States’ Response to Same Sex Marriage?
In Hawaii’s November 1998 election, an overwhelming majority of voters, in a referendum previously passed by the state legislature, amended the Hawaii Constitution as follows: “The legislature shall have the power to reserve marriage to opposite-sex couples (Hawaii Constitution, Article 1, §23).” Thus, the legislature and a majority of the citizens of Hawaii, foreclosed any future for Baehr v. Lewin and the rights of same-sex Hawaiians to marry. As a sad footnote, upon re-hearing Baehr v. Lewin, which continued to progress through the courts, now titled Baehr v. Miike, the Hawaii Supreme Court held the state did not meet its burden of establishing a compelling state interest in limiting marriage only to opposite sex couples. Thus, in a symbolic and legally irrelevant victory, the court held the denial of marriage to same-sex couples was unconstitutional.
The response to the idea of same-sex marriage in Hawaii is indicative of the reaction of much of the United States. The campaign at the federal level which led to enactment of DOMA was mirrored at the state level in individual campaigns for what became known as mini-DOMAs.
What are the mini-DOMAs?
A vast majority of states have passed similar laws and constitutional amendments, either through legislation or public referendum. These laws are nicknamed “mini-DOMAs” because of their similarity to Section 3 of the federal DOMA. These state laws all accomplish the same goal: refusal to recognize same-sex marriages entered into in other states and a ban on the creation of same sex marriages within the state. There are different variations. The Alabama Constitution was amended in 2006 (after earlier legislation) to read:
“Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.”
The Montana Constitution was amended by referendum in 2004 as follows: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.”
As of 2010, 42 states have passed or enacted mini-DOMAs similar to those recited above.
What is the Full Faith and Credit Clause?
Article Four Section 1 of the United States Constitution, called the full faith and credit clause, reads as follows:
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
The full faith and credit clause is applied, for example, to the judgments of other states’ courts, and to driver’s licenses issued by sister states. Historically, marriage was treated as an issue to be regulated by the states, similar to education. Each state determines the requirements for a marriage, whether a blood test is needed, the fees, or the forms that are needed and the ceremony required to solemnize the marriage. This has always been the law dating back to colonial times.
Marriage rules differ among the states. For example, some states allow first cousins to marry. If first cousins marry in such a state, that marriage is then recognized by all other states. Additionally, eleven states recognize couples as married if they live together and hold themselves out as married. This concept is called a common law marriage; it cannot be entered into in a state such as New York. However, a common law marriage created by cohabiting couples in a sister-state is recognized in New York. All of these are examples of the full faith and credit clause in practice.
Does the Defense of Marriage Act overrule the Full Faith and Credit Clause?
Arguably, the Defense of Marriage Act overrules the full faith and credit clause by allowing states to ignore same-sex marriages entered into in sister states. This is contrary to some of the most fundamental principles of Constitutional law. The long accepted rule recognized in the United States as early as the decision in Marbury v. Madison (5 U.S. 137) from 1803 is that the U.S. Constitution (e.g. the full faith and credit clause) is supreme and trumps ordinary legislation (e.g. the Defense of Marriage Act); this concept is called the supremacy clause. The U.S. Supreme Court has not yet heard a case regarding the constitutionality of the Defense of Marriage Act.
Proponents of the Defense of Marriage Act raise a few justifications. There is something called the “public policy exception” to the full faith and credit clause. This old common law exception allows states to disregard laws or decisions from sister states which are “abhorrent” to or against the public policy of a state. Thus, if a law or judgment in one state is “offensive” to another state, it need not be enforced. An example of this with marriages would be a marriage between closely related family members, such as brother/sister, aunt/nephew or uncle/niece. The arguments of those in support of DOMA is that same-sex marriages are, likewise, “offensive” or against the public policy of a vast majority of the states. Critics of DOMA are offended by the mere fact that comparisons are being made between sibling marriages and same-sex marriages. This analogy shows great prejudice against homosexuals in general.
A second argument in favor of the constitutionality of DOMA hinges on the “effects clause” of the full faith and credit clause which allows congress to “prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” The argument is that DOMA is merely an act by congress determining the “effect” of the “acts, records and proceedings” (e.g. a same-sex marriage) of one state in another state. It is argued that this is an overbroad reading of the “effects” clause. By enacting DOMA, Congress passed a law which completely eradicates the “effect” of one state’s marriage “proceedings” in all other states.
Is there a Constitutional right to marry?
The case of Loving v. Virginia (388 U.S. 1) is an historic precedent establishing the fundamental right to marry. In 1967, Virginia and 15 other states had laws criminalizing inter-racial marriage, called anti-miscegenation laws. In 1958, Mildred Jeter, who was African-American, married Richard Loving, who was white, in a ceremony held in the District of Columbia. Upon returning as a married couple to their home state of Virginia, they were charged with a felony (“miscegenation”) and sentenced to one year in prison. This sentence was suspended provided they moved out of Virginia for 25 years. The case was appealed to The Supreme Court held these laws to be unconstitutional in a unanimous (9 to 0) decision written by Chief Justice Earl Warren. In his opinion he declared marriage to be “one of the basic civil rights of man.” Further, the Chief Justice concluded:
“The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
This is a rare example of federal intervention in states’ marriage laws. Clearly, the Supreme Court had a strong motivation and a noble purpose in overturning a disgraceful legacy of slavery and discrimination. Most opponents of the Defense of Marriage Act site Loving v. Virginia as precedent that establishes the fundamental right to marry for heterosexuals and homosexuals alike.