The Defense of Marriage Act (DOMA) was a United States federal law passed by the 104th United States Congress and signed into law by President Bill Clinton on September 21, 1996. It banned federal recognition of same-sex marriage by limiting the definition of marriage to the union of one man and one woman, and it further allowed states to refuse to recognize same-sex marriages granted under the laws of other states.
Congressman Bob Barr and Senator Don Nickles, both members of the Republican Party, introduced the bill that became DOMA in May 1996. It passed both houses of Congress by large, veto-proof majorities. Support was bipartisan, though about a third of the Democratic caucus in both the House and Senate opposed it. Clinton criticized DOMA as "divisive and unnecessary". He nonetheless signed it into law in September 1996.
Section 2 of the act allowed states to deny recognition of same-sex marriages conducted by other states. 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. It also excluded same-sex spouses from the scope of laws protecting families of federal officers, laws evaluating financial aid eligibility, and federal ethics laws applicable to opposite-sex spouses.
After its passage, DOMA was subject to numerous lawsuits and repeal efforts. In United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process Clause, thereby requiring the federal government to recognize same-sex marriages conducted by the states. In Obergefell v. Hodges (2015), the Court held that same-sex marriage was a fundamental right protected by both the Due Process Clause and the Equal Protection Clause. The ruling required all states to perform and recognize the marriages of same-sex couples, leaving Section 2 of DOMA as superseded and unenforceable, at which point the only remaining part of the legislation which remained valid was Section 1 relating to its title. On December 13, 2022, DOMA was repealed by the passage of the Respect for Marriage Act which was signed into law by President Joe Biden, who had previously voted in favor of DOMA as a United States Senator.
Background
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". 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; the Minnesota Supreme Court ruled (in Baker v. Nelson) that limiting marriage to opposite-sex couples did not violate the Constitution. Baker later changed his legal name to Pat Lynn McConnell and married his male partner in 1971, but the marriage was not legally recognized. A 1972 off-Broadway play, Nightride, depicted "a black–white homosexual marriage". In 1979, IntegrityUSA, an organization of gay Episcopalians, raised the issue when the U.S. Episcopal Church considered a ban on the ordination of homosexuals as priests.
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." In May 1989, Denmark established registered partnerships that granted same-sex couples many of the rights associated with marriage. 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. 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." In September 1989, the State Bar Association of California urged recognition of marriages between homosexuals even before gay rights advocates adopted the issue.
Gary Bauer, head of the socially conservative Family Research Council, predicted in 1989 that the issue would be "a major battleground in the 1990s". In 1991, Georgia Attorney General Michael J. Bowers (who had previously been the defendant in a failed Supreme Court challenge to a law that criminalized homosexuality) withdrew a job offer to a lesbian who planned to marry another woman in a Jewish wedding ceremony. In 1993, a committee of the Evangelical Lutheran Church in America released a report asking Lutherans to consider blessing same-sex marriages and stating that lifelong abstinence was harmful to same-sex 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." 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.
Baehr v. Miike
In the 1993 lawsuit Baehr v. Miike the Supreme Court of Hawaii ruled that preventing same-sex couples from obtaining marriage licenses was sex discrimination. Thus, the court found that the Hawaii State Constitution required the state to demonstrate that its opposite-sex marriage definition satisfied the legal standard known as strict scrutiny. This ruling prompted concern among opponents of same-sex marriage, who feared 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. This was because "marriage" and "spouse" were largely undefined terms in federal law, with federal courts relying on state law to define what "marriage" practically entailed. To quote the House Judiciary Committee's 1996 report on bill H.R. 3396 (which would become DOMA): "Until the Hawaii situation, there was never any reason to make explicit what has always been implicit — namely, that only heterosexual couples could get married".
In 1995, as Baehr v. Miike progressed through Hawaiian courts, dozens of states proposed and enacted laws which explicitly denied recognition of same-sex marriages performed elsewhere in the US and defined marriage as being between a man and a woman. States would continue enacting these laws even after DOMA passed.
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". Additionally, the report claims that four distinct governmental interests would be advanced by DOMA: "(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources".
Text
The main provisions of the act were as follows:
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
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.
Enactment and role of President Clinton
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, (R-OK), introduced the bill in the Senate. 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". 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."
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." 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." 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.
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." The Democratic Party platform that year did not mention DOMA or same-sex marriage. 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." However, he also criticized DOMA as unnecessary and divisive.
The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress. On July 12, 1996, with only 65 Democrats and then Rep. Bernie Sanders (I-VT) and Rep. Steve Gunderson (R-WI), in opposition, 342 members of the U.S. House of Representatives—224 Republicans and 118 Democrats—voted to pass DOMA. On September 10, 1996, 84 Senators, a majority of the Democratic Senators, including Joe Biden, and all of the Republicans—voted in favor of DOMA. 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.
After Congress had passed DOMA with veto-proof majorities in both houses, Clinton signed the bill into law on September 21, 1996 late at night behind closed doors. Clinton, who was traveling when Congress acted, signed it into law promptly upon returning to Washington, D.C.; no signing ceremony was held for DOMA and no photographs were taken of Clinton signing it. 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".
In 2013, Mike McCurry, the White House press secretary at the time, recalled that Clinton's "posture was quite frankly driven by the political realities of an election year in 1996." 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.
Following the signing of DOMA, Clinton's public position on same-sex marriage shifted. In 2008, he spoke out against the passage of California's Proposition 8, which would have banned same-sex marriage, and recorded robocalls urging Californians to vote against it. In July 2009, he came out in support of same-sex marriage.
Years later, Clinton claimed that he signed DOMA reluctantly in view of the veto-proof congressional majorities in support of the bill, and that he did so to avoid associating himself politically with the then-unpopular cause of same-sex marriage and to defuse momentum for a proposed amendment to the U.S. Constitution banning same-sex marriage. Even so, later the same year, Clinton ran ads on Christian radio stations nationwide promoting his signing of the legislation. The ads were pulled after massive blowback from LGBT groups. Clinton's explanation for signing DOMA has been disputed by gay rights activists Elizabeth Birch and Evan Wolfson.
Legal impact
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". In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003. 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 report also noted several other major program categories that were affected—veterans' benefits, including pensions and survivor benefits; taxes on income, estates, gifts, and property sales; and benefits due federal employees, both civilian and military—and identified specifics such as the rights of the surviving spouse of a creator of copyrighted work and the financial disclosure requirements of spouses of Congress members 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" for example, is restricted to those in which "a majority interest is held by individuals related by marriage or blood."
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.
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.
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. Same-sex spouses of military personnel were denied the same access to military bases, legal counseling, and housing allowances provided to different-sex spouses.
Political impact
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." The Democratic Party platform that year did not mention DOMA or marriage in this context.
Bush administration
In 2004, President George W. Bush endorsed a proposed constitutional amendment to restrict marriage to opposite-sex couples because he found DOMA to be 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." In January 2005, however, he said he would not lobby on its behalf, since too many U.S. senators thought DOMA would not survive a constitutional challenge.
Obama administration
President Barack Obama's 2008 political platform endorsed the repeal of DOMA. 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. 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." 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.
On February 23, 2011, Attorney General Eric Holder released a statement regarding lawsuits challenging DOMA Section 3. He wrote:
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 that although it was no longer defending Section 3 in court, the administration intended to continue to enforce the law "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."
In a separate letter to Speaker of the House John Boehner, Holder noted that Congress could participate in these lawsuits.
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. 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. The DOJ made similar arguments in a filing in Gill on July 7.
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".
Congressional intervention
On March 4, 2011, Boehner announced that the Bipartisan Legal Advisory Group (BLAG) would convene to consider whether the House of Representatives should defend DOMA Section 3 in place of the Department of Justice, and on March 9 the committee voted 3–2 to do so.
On April 18, 2011, House leaders announced the selection of former United States Solicitor General Paul Clement to represent BLAG. 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. 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. The House's initial contract with Clement capped legal fees at $500,000, but on September 30 a revised contract raised the cap to $1.5 million. 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."
Challenges to Section 3 in Federal court
Numerous plaintiffs have challenged DOMA. Prior to 2009, all federal courts upheld DOMA in its entirety.
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):
Gill v. Office of Personnel Management (12-13 as BLAG v. Gill)
Massachusetts v. United States Department of Health and Human Services (12-15 as Dept. of HHS v. Massachusetts, 12-97)
Golinski v. Office of Personnel Management (12-16 OPM v. Golinski)
Windsor v. United States (12-63)
Pedersen v. Office of Personnel Management (12-231)
Golinski v. Office of Personnel Management
Golinski v. Office of Personnel Management was a challenge to Section 3 of DOMA in federal court based on a judicial employee's attempt to receive spousal health benefits for her partner. 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, 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, which she did on April 14. Following the Attorney General's decision to no longer defend DOMA, 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." 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.