U.S. President Clinton Signs Defense of Marriage Act

US president Bill Clinton signed into law an act that defines marriage as “the legal union between one man and one woman” and that denies federal benefits to same-gender married couples. The law asserts that although no state is required to recognize same-gender marriages conducted in other states, the law does not keep states from recognizing those same marriages if they choose to do so.

Date September 21, 1996

Locale Washington, D.C.

Key Figures

• Robert Barr (b. 1948), Republican US representative, Georgia
• Lou Sheldon (b. 1934), reverend, Traditional Values Coalition
• Bill Clinton (b. 1946), US president, 1993-2001

Summary of Event

Motivated by concerns over same-gender marriage litigation in Hawaii, the 104th Congress passed the Defense of Marriage Act (DOMA) during the summer and fall of 1996. The law defines “marriage” as the union between a man and a woman, prevents same-gender couples legally married in a given state from receiving federal benefits, and allows states to refuse to recognize same-gender marriages from other states. Although the necessity and constitutionality of DOMA have been questioned, the bill may be the most important piece of national legislation to date affecting the lives of gays and lesbians.

The salience of same-gender marriage increased considerably after the Hawaii Supreme Court opened the door to its legal recognition in 1993, but as a political issue, same-gender marriage is nothing new. For lesbian and gay civil rights advocates in particular, the issue has been part of the political agenda since the early 1970s. In 1993, however, the Hawaii Supreme Court ruled in Baehr v. Lewin (renamed Baehr v. Miike) that the state’s denial of marriage licenses to same-gender couples amounted to gender discrimination and was unconstitutional under the Hawaii constitution. The ruling ignited both hope and fear that same-gender marriages might become legal in Hawaii and that other states might be forced to recognize these marriages.

By late 1995 and early 1996, a broad coalition of national conservative Christian groups, including the American Family Association, the Christian Coalition, Concerned Women of America, the Eagle Forum, the Family Research Council, Focus on the Family, and the Traditional Values Coalition, began a nationwide legislative campaign to ban the recognition of same-gender marriages. In January, 1996, the main arm of the coalition, the National Campaign to Protect Marriage (NCPM) formed during meetings of Christian Right groups in Memphis, Tennessee. The NCPM helped to distribute a video called The Ultimate Target of the Gay Agenda: Same Sex Marriages to national and state legislators. The NCPM officially kicked-off its campaign at a February 10, 1996, rally in Des Moines, Iowa, with a display of a “marriage protection resolution,” endorsed by all of the 1996 Republican presidential candidates. The campaign was so successful that by March, 1998, all but two states had considered legislation banning the recognition of same-gender marriages, twenty-eight had adopted such bans, and the federal government had adopted DOMA.

DOMA (H.R. 3396) outlines the denial of federal benefits to same-gender married couples and allows individual states to deny the recognition of such marriages conducted in other states. H.R. 3396 had 105 Republican and 12 Democratic cosponsors. The US Senate companion bill was S.R. 1740, sponsored by Republican senator Don Nickles of Oklahoma and twenty-four cosponsors. H.R. 3396 was drafted by Representative Robert Barr, a Republican from Georgia, with the help of Reverend Lou Sheldon of the Traditional Values Coalition, as part of a Republican package of “family values” legislation. Barr argued that proponents of same-gender marriage wanted “to throw open the doors of the US Treasury . . . to be raided by the homosexual movement.” Out gay representative Barney Frank, a Democrat from Massachusetts, failed in his attempt to amend the bill—after a vote of 103-311—and therefore limit its scope. With the support of out gay representative Steve Gunderson, a Republican from Wisconsin, a California Democrat tried to amend the bill with language that would have required the General Accounting Office to study the differences and the benefits, rights, and privileges available to persons in a marriage versus those persons in a domestic partnership. This amendment failed as well, and the bill passed 342-67, with some Democrats (65), one independent (Bernard Sanders of Vermont), and one Republican (Gunderson) opposing the measure.

House hearings on DOMA contained arguments on morality, civil rights, and gay and lesbian families. For example, Republican representative James Sensenbrenner of Wisconsin argued that “one of the problems our society faces today is the erosion of the family and the erosion of the marriage because the marriage is the bond that keeps the family together, and that’s why I strongly support this legislation.” Meanwhile, gay activist and writer Andrew Sullivan argued against DOMA, countering that allowing same-gender marriage would “promote stability, responsibility, the disciplines of family life among people.”

DOMA hearings in the Senate also revolved around the notion of a “normal” family and deciding if that definition could be expanded. The hearings included testimony from religious conservatives and gay and lesbian activists, including the president of Parents, Families, and Friends of Lesbians and Gays (PFLAG).

House and Senate floor debate on DOMA mirrored the committee testimony. In referring to DOMA, Representative Steve Largent, a Republican from Oklahoma, argued that there “is absolutely nothing that we can do that is more important than protecting our families and protecting the institution of marriage.” House Democrats who opposed the bill chose not to argue their point in terms of the legitimacy of gay and lesbian families, but argued instead that DOMA was unconstitutional and was a political maneuver designed to coincide with a presidential election year. However, Gunderson did argue that Congress should consider adopting a national domestic-partnership law for gay and lesbian couples. Finally, perhaps the most dramatic episode of the Senate debate was when Senator Robert Byrd, a Democrat from West Virginia, held up his family Bible to support the legislation and his definition of the American family.

Although Bill Clinton was at the time considered the most GLBT-friendly US president ever, he chose to sign DOMA on September 21, 1996, making the legislation law (Public Law No: 104-199). The oldest national GLBT rights group in the United States, the National Gay and Lesbian Task Force, responded harshly.

Significance

Although Congress grew more conservative following the passage of DOMA, GLBT activists did gain some legislative victories. For example, efforts by conservatives to overturn Clinton’s 1998 ban on sexual-orientation discrimination for federal civilian employees were defeated, and Republican efforts to pass legislation prohibiting unmarried couples from jointly adopting children in the District of Columbia were blocked in 1998.

With or without the passage of DOMA, the debate over same-gender marriage grew far more intense in 2003 and 2004. As the US Supreme Court overturned state sodomy laws and Canadian provinces upheld same-gender marriages in the summer of 2003, calls increased for a constitutional amendment to ban same-gender marriage. Barr, however, said he was opposed to the federal-level amendment because it would be unnecessary, that the issue of same-gender marriage is an issue the states should handle.

In November, 2003, the Massachusetts Supreme Judicial Court legalized same-gender marriage in that state, setting off a new round of federal and state activity on the issue, including a failed attempt in the US Senate in July, 2004, to pass a constitutional ban. The Senate was scheduled to debate and vote again in June, 2006, on a constitutional amendment defining marriage as a union between a woman and a man.

In August of 2004, DOMA was upheld as constitutional for the first time by a federal court. At the same time, the House of Representatives had been considering the Marriage Protection Act (or Amendment), which would invoke a provision of DOMA to strip federal courts of their jurisdiction to rule on challenges to state bans on same-gender marriages. On November 29, 2004, however, the Supreme Court refused to overturn same-gender marriage rights in Massachusetts. Clearly, the passage of DOMA did not settle the same-gender marriage debate.

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.

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