Defense of Marriage Act of 1996

A federal law that quarantined same-sex marriages to individual states that allowed them

Date Enacted on September 21, 1996

The act was a major national victory for cultural conservatives attempting to prevent the spread of same-sex marriage.

Few issues are as perpetually contentious in American society as the right for homosexuals to marry one another. The Defense of Marriage Act of 1996 (DOMA) could be viewed as the final chapter in a long debate surrounding same-sex marriage to that point in time. After all, according to the act, no state has to recognize a same-sex marriage performed in another state, and further, the federal government will not recognize same-sex marriages. However, like other issues in constitutional law, the DOMA did not so much close the book on the debate as start a new chapter on it.

The DOMA was overwhelmingly passed by the Republican-controlled legislature of 1996. It was passed in a political climate of ascending Christian evangelism, a precipitous decline in moderate cultural voices in government, and a shift in the South from long-held Democratic Party control to firm Republican Party control. Indeed, the act cannot be viewed solely in the context of the gay rights movement and its stalwart oppositional movement, but must be understood as part of a broader movement of cultural conservatism. The act is very much cut from the same cloth as legislation concerning abortion, tough-on-crime laws, and church-and-state issues: so-called morality politics. Clashes over such morality issues are fierce, and generally victory goes to those with the greatest raw numbers on a particular vote.

In 1996, advocates of the act saw it as a codification of what had already been an established national tradition for centuries: that marriage is between one man and one woman. Conversely, proponents of same-sex marriage saw the act as an affront to the minority rights of a legitimate segment of American society. One thing is certain, however, given the policy climate leading up to the passage of the DOMA and the continued debate about same-sex marriage following its enactment—the act was not so much a vote for traditional marriage as it was, pragmatically, a vote against same-sex marriage and by extension the validity of homosexual lives in general.

There would have been no DOMA, of course, if then-president Bill Clinton had not signed the act into law. Cynics could point out Clinton’s beleaguered reputation when it came to traditional marriage and thus understand his backing of the law in terms of political expediency. Alternatively, Clinton can be viewed as a rare moderate voice in the 1996 political scene that saw shades of gray when most saw black and white.

Impact

After the bill’s passage, there was not a tidal wave of states that enacted same-sex marriage laws. In 1996, this was the thinking among many politicians, particularly given the 1993 Hawaii Supreme Court case that laid out the legal foundations of same-sex marriage. What did happen was that Massachusetts legalized same-sex marriage in 2004, and thirty-nine other states codified their own defense of marriage acts in one form or another. Again, proponents of same-sex marriage view this barrage of defense of marriage acts as a classic case of tyranny of the majority.

Though DOMA went largely unchallenged at first, in the twenty-first century it began to encounter resistance through both legislative and judicial channels. In 2009, three Democratic members of Congress introduced legislation to repeal DOMA called the Respect for Marriage Act (RFMA). RFMA garnered 91 cosponsors in the House of Representatives and the support of Clinton and several others who had initially backed DOMA, but never made it to a vote. The bill was referred to the House Judiciary Committee and went no further. RFMA was reintroduced in the Senate and House simultaneously in 2011, after the Obama administration announced that while it would continue to enforce DOMA as long as it remained on the books, it would not defend the act in court, as the administration considered it unconstitutional. The bill, endorsed by President Barack Obama, gained even more support than it had on the previous attempt, even acquiring several Republican cosponsors, but again was not voted on. In 2013, the bill's sponsors decided to refrain from reintroducing the bill until they had seen the results of the ongoing court cases that also challenged DOMA.

One such case was Massachusetts v. United States Department of Health and Human Services, a suit brought by Massachusetts Attorney General Martha Coakley in 2009 on the grounds that DOMA was discriminatory and undermined individual states' efforts to recognize same-sex marriage. Another was Gill v. Office of Personnel Management, brought in 2010 by eight same-sex couples and three widowers who had all married in Massachusetts and been denied various federal benefits available to opposite-sex married couples. The case specifically challenged the constitutionality of section 3 of DOMA, the section preventing the federal government from recognizing any same-sex marriage, even if it was recognized in the state where the couple lived. The same was true of Golinski v. Office of Personnel Management, in which the plaintiff, federal employee Karen Golinski, had been denied spousal health benefits for her wife. Pedersen v. Office of Personnel Management, similar to Gill, was brought by six married couples and one widower who had been denied various federal benefits relating to taxes, pensions, and health care. Finally, Windsor v. United States was brought by Edith Windsor, who was made to pay significant federal taxes on her late wife's estate, as the federal government did not recognize her as eligible for the unlimited spousal deduction. All of these cases were decided in favor of the plaintiffs by district courts and then appealed to the Supreme Court by opponents.

The Supreme Court chose to hear United States v. Windsor (as the Windsor case was now called) in 2013, and, in a 5–4 decision, found that section 3 of DOMA was unconstitutional. The appeals on all related cases were then dismissed. The Windsor decision is widely considered to have paved the way for the decision in Obergefell v. Hodges two years later, which legalized same-sex marriage nationwide. This effectively struck down section 2 of DOMA, which declared that any state in which same-sex marriage was not legal had the right to refuse recognition of marriages performed in other jurisdictions.

Bibliography

Bonauto, Mary, and Evan Wolfson. "From DOMA to Marriage Equality: How the Tide Turned for Gay Marriage." Interview by Terry Gross. NPR. NPR, 9 July 2015. Web. 5 Oct. 2015.

Hull, Kathleen E. Same-Sex Marriage: The Cultural Politics of Love and Law. New York: Cambridge UP, 2006. Print.

Kaplan, Roberta. Then Comes Marriage: United States v. Windsor and the Defeat of DOMA. New York: Norton, 2015. Print.

Levy, Ariel. "The Perfect Wife: How Edith Windsor Fell in Love, Got Married, and Won a Landmark Case for Gay Marriage." New Yorker. Condé Nast, 30 Sept. 2013. Web. 13 July 2015.

Mezey, Susan Gluck. Queers in Court: Gay Rights Law and Public Policy . Lanham: Rowman, 2007. Print.

Pinello, Daniel R. America’s Struggle for Same-Sex Marriage. New York: Cambridge UP, 2006. Print.