The Defense of Marriage Act (DOMA) was a
United States federal law
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as va ...
passed by the
104th United States Congress
The 104th United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, D.C. from January 3, 199 ...
and signed into law by President
Bill Clinton
William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...
. It banned federal recognition of
same-sex marriage
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...
by limiting the definition of
marriage
Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...
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.
In the 1980s, same-sex marriage had opposition especially from
socially conservative
Social conservatism is a political philosophy and variety of conservatism which places emphasis on traditional power structures over social pluralism. Social conservatives organize in favor of duty, traditional values and social institution ...
groups. Congressman
Bob Barr
Robert Laurence Barr Jr. (born November 5, 1948) is an American attorney and politician. He served as a federal prosecutor and as a United States House of Representatives, Congressman. He represented Georgia's 7th congressional district as a Re ...
and Senator
Don Nickles
Donald Lee Nickles (born December 6, 1948) is an American politician and lobbyist who was a Republican United States Senator from Oklahoma from 1981 to 2005. He was considered both a fiscal and social conservative. After retiring from the Senat ...
, 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, with opposition coming from approximately one-third of the
Democratic caucus in both the
House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
and the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
. 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
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being Mexico, constituting ...
for all federal purposes, including insurance benefits for government employees,
social security
Welfare, or commonly social welfare, is a type of government support intended to ensure that members of a society can meet basic human needs such as food and shelter. Social security may either be synonymous with welfare, or refer specificall ...
survivors' benefits, immigration, bankruptcy, and the filing of joint
tax returns
A tax return is the completion of documentation that calculates an entity or individual's income earned and the amount of taxes to be paid to the government or government organizations or, potentially, back to the taxpayer.
Taxation is one of ...
. 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
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
declared Section 3 of DOMA unconstitutional under the
Due Process Clause
In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
, 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 Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
. The ruling required all states to perform and recognize the marriages of same-sex couples, leaving Section 2 of DOMA as superseded and unenforceable. On December 13, 2022, DOMA was repealed by the passage of the
Respect for Marriage Act
The Respect for Marriage Act (RFMA; ) is a landmark United States federal law passed by the 117th United States Congress and signed into law by President Joe Biden. It repeals the Defense of Marriage Act (DOMA), requires the U.S. federal governm ...
which was signed into law by President
Joe Biden.
Background
The issue of legal recognition of same-sex marriage attracted mainstream attention infrequently until the 1980s. A sympathetic reporter heard several
gay
''Gay'' is a term that primarily refers to a homosexual person or the trait of being homosexual. The term originally meant 'carefree', 'cheerful', or 'bright and showy'.
While scant usage referring to male homosexuality dates to the late 1 ...
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
The Minnesota Supreme Court is the Supreme court, highest court in the U.S. state of Minnesota. The court hears cases in the Supreme Court chamber in the Minnesota State Capitol or in the nearby Minnesota Judicial Center.
History
The court wa ...
ruled (in ''
Baker v. Nelson
''Richard John Baker v. Gerald R. Nelson'', 291 Minn. 310, 191 N.W.2d 185 (1971), was a case in which the Minnesota Supreme Court decided that construing a marriage statute to restrict marriage licenses to persons of the opposite sex "does not ...
'') 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".
[For a review of the play see ] In 1979,
IntegrityUSA
Integrity USA was a nonprofit organization affiliated with the Episcopal Church in the United States. It was founded in 1974 to promote the inclusion of Q members and their Straight allies, allies for equal access to Episcopal liturgy, rites, bu ...
, an organization of gay Episcopalians, raised the issue when the U.S. Episcopal Church considered a ban on the ordination of homosexuals as priests.
[For the theological background beginning in 1967, see ]
''
The New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'' 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
Andrew Michael Sullivan (born 10 August 1963) is a British-American author, editor, and blogger. Sullivan is a political commentator, a former editor of ''The New Republic'', and the author or editor of six books. He started a political blog, ' ...
publishing an essay "Here Comes the Groom" in ''
The New Republic
''The New Republic'' is an American magazine of commentary on politics, contemporary culture, and the arts. Founded in 1914 by several leaders of the progressive movement, it attempted to find a balance between "a liberalism centered in hum ...
'' 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
Gary Lee Bauer (born May 4, 1946) is an American civil servant, activist, and former political candidate. He served in President Ronald Reagan's administration as Under Secretary of Education and Chief Domestic Policy Advisor, and later became p ...
, head of the
socially conservative
Social conservatism is a political philosophy and variety of conservatism which places emphasis on traditional power structures over social pluralism. Social conservatives organize in favor of duty, traditional values and social institution ...
Family Research Council
The Family Research Council (FRC) is an American evangelical activist group and think-tank with an affiliated lobbying organization. FRC promotes what it considers to be family values. It opposes and lobbies against: access to pornography, emb ...
, predicted 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
The Evangelical Lutheran Church in America (ELCA) is a mainline Protestant Lutheran church headquartered in Chicago, Illinois. The ELCA was officially formed on January 1, 1988, by the merging of three Lutheran church bodies. , it has approxim ...
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
Theodore Bruce Bawer (born October 31, 1956) is an American writer who has been a resident of Norway since 1999. He is a literary, film, and cultural critic and a novelist and poet, who has also written about gay rights, Christianity, and Islam.
...
's ''A Place at the Table'' (1993) advocated the legalization of same-sex marriage.
In ''
Baehr v. Miike
''Baehr v. Miike'' (originally ''Baehr v. Lewin'') was a lawsuit in which three same-sex couples argued that Hawaii's prohibition of same-sex marriage violated the state constitution. Initiated in 1990, as the case moved through the state courts ...
'' (1993), the
Supreme Court of Hawaii
The Supreme Court of Hawaii is the highest court of the Hawaii, State of Hawaii in the United States. Its decisions are binding on all other courts of the Hawaii State Judiciary. The principal purpose of the Supreme Court is to review the decis ...
ruled that the state must show a compelling interest in prohibiting same-sex marriage. This finding 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
Article Four of the United States Constitution, Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, addresses the duty that U.S. state, states within the United States have to respect the "public acts, rec ...
of the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
. The
House Judiciary Committee
The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, a ...
'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".
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
Robert Laurence Barr Jr. (born November 5, 1948) is an American attorney and politician. He served as a federal prosecutor and as a United States House of Representatives, Congressman. He represented Georgia's 7th congressional district as a Re ...
, then a Republican, authored the Defense of Marriage Act and introduced it in the
House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
on May 7, 1996. Senator
Don Nickles
Donald Lee Nickles (born December 6, 1948) is an American politician and lobbyist who was a Republican United States Senator from Oklahoma from 1981 to 2005. He was considered both a fiscal and social conservative. After retiring from the Senat ...
, (R) Oklahoma, introduced the bill in the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
.
The
House Judiciary Committee
The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, a ...
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, "
e 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."
![Pat Schroeder vs DOMA](https://upload.wikimedia.org/wikipedia/commons/c/cf/Pat_Schroeder_vs_DOMA.jpg)
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
Patricia Nell Scott Schroeder (born July 30, 1940) is an American politician who represented Colorado in the United States House of Representatives from 1973 to 1997. A member of the Democratic Party, Schroeder was the first female U.S. Represe ...
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
Article Four of the United States Constitution, Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, addresses the duty that U.S. state, states within the United States have to respect the "public acts, rec ...
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
nti-discriminationlaws 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." But he also criticized DOMA as "divisive and unnecessary".
The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the
Republican
Republican can refer to:
Political ideology
* An advocate of a republic, a type of government that is not a monarchy or dictatorship, and is usually associated with the rule of law.
** Republicanism, the ideology in support of republics or agains ...
-controlled Congress. On July 12, 1996, with only 65 Democrats and then Rep.
Bernie Sanders
Bernard Sanders (born September8, 1941) is an American politician who has served as the junior United States senator from Vermont since 2007. He was the U.S. representative for the state's at-large congressional district from 1991 to 2007 ...
(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.
While his stated position was against same-sex marriage, Clinton criticized DOMA as "unnecessary and divisive", and his press-secretary called it "gay baiting, plain and simple".
However, after Congress had passed the bill with enough votes to override a presidential veto,
Clinton signed DOMA. Years later, he said that he did so reluctantly in view of the veto-proof majority, both to avoid associating himself politically with the then-unpopular cause of same-sex marriage and to defuse momentum for a proposed Federal Amendment to the U.S. Constitution banning same-sex marriage.
Clinton, who was traveling when Congress acted, signed it into law promptly upon returning to Washington, D.C., on September 21, 1996;
no signing ceremony was held for DOMA and no photographs were taken of him signing it into law. 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".
Even so, later the same year Clinton ran ads on Christian radio stations nationwide promoting how he'd signed DOMA into force. The ads were pulled after massive blowback from LGBT groups.
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
James Catherwood Hormel (January 1, 1933 – August 13, 2021) was an American philanthropist, LGBT activist, diplomat, and heir to the Hormel meatpacking fortune. He served as the United States Ambassador to Luxembourg from 1999 to 2001, and was t ...
, who was appointed by Clinton as the first openly gay
U.S. Ambassador
Ambassadors of the United States are persons nominated by the President of the United States, president to serve as the country's diplomat, diplomatic representatives to foreign nations, international organizations, and as Ambassador-at-large, ...
, described the reaction from the gay community to Clinton signing DOMA as shock and anger. On Hormel's account, Clinton had been the first President to advocate gay rights, push for AIDS funding, support gay and lesbian civil rights legislation, and appoint open LGBT people to his administration. Thus his signing of DOMA was viewed by much of the community as a great betrayal.
Clinton did not mention DOMA in his
2004 autobiography. However,
Sasha Issenberg
Sasha Issenberg is an American journalist. His articles have been published in ''Philadelphia'', ''Slate'', the ''Washington Monthly'', ''The New York Times Magazine'', ''The Atlantic'', ''Boston'', ''The Boston Globe'', ''Monocle'' and ''George'', ...
, the author of ''
The Engagement: America's Quarter-Century Struggle Over Same-Sex Marriage'', has noted that Clinton made no speaking reference to the issue of gay marriage prior to May 1996, but that during to this time, he did make written comments such as “homosexual couples should have the right to get married,” “I’ve taken a very strong stand against any discrimination against gays and lesbians,” and that “but I don’t favor a law to legalize marriages.” Over time, Clinton's public position on same-sex marriage shifted. He spoke out against the passage of California's
Proposition 8
Proposition 8, known informally as Prop 8, was a California ballot proposition and a constitutional amendment, state constitutional amendment intended to ban same-sex marriage; it passed in the California state elections, November 2008, Novem ...
and recorded robocalls urging Californians to vote against it. In July 2009, he officially came out in support for same-sex marriage.
On August 13, 2009, during Netroots Nation, when confronted by LGBT activist Lane Hudson, Clinton explained that he had to sign DOMA in order to prevent a constitutional amendment that would proscribe same-sex marriage: "We were attempting at the time, in a very reactionary Congress, to head off an attempt to send a constitutional amendment banning gay marriage to the states. And if you look at the eleven referenda much later—in 2004, in the election—which the Republicans put on the ballot to try to get the base vote for President Bush up, I think it's obvious that something had to be done to try to keep the Republican Congress from presenting that."
In an op-ed written on March 7, 2013, for ''The Washington Post'', Clinton again suggested that DOMA was necessary in order to preclude, at that time, the passage of a constitutional amendment banning same-sex marriage and urged the Supreme Court, which would shortly hear arguments on ''
United States v. Windsor
''United States v. Windsor'', 570 U.S. 744 (2013), is a landmark United States Supreme Court civil rights case concerning same-sex marriage. The Court held that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition o ...
'', to overturn DOMA.
Clinton's explanation for signing DOMA has been disputed by gay rights activist Elizabeth Birch: "In 1996, I was President of the Human Rights Campaign, and there was no real threat of a
Federal Marriage Amendment
The Federal Marriage Amendment (FMA), also referred to by proponents as the Marriage Protection Amendment, was a proposed amendment to the United States Constitution that would legally define marriage as a union of one man and one woman. The FMA ...
. That battle would explode about eight years later, in 2004, when President Bush announced it was a central policy goal of his administration to pass such an amendment."
Evan Wolfson, who in 1996 ran the National Freedom to Marry Coalition, while an attorney at Lambda Legal, has also criticized the suggestion that DOMA was stopping something worse: "That's complete nonsense. There was no conversation about something 'worse' until eight years later. There was no talk of a constitutional amendment, and no one even thought it was possible—and, of course, it turned out it wasn't really possible to happen. So, the idea that people were swallowing DOMA in order to prevent a constitutional amendment is really just historic revisionism and not true. That was never an argument made in the '90s."
However, political discussion of the possibility of using a constitutional amendment to restrict marriage rights was not unheard of in the 1990s. In January 1996, for example, the House Judiciary Committee for the state of Hawaii voted 12–1 in favor of passing bill HB 117, which was aimed at amending the constitution of Hawaii to define marriage as involving one man and one woman. In 1998, the first anti-same-sex marriage amendment was added to the constitution of a U.S. state (Alaska),
[Homosexual (same-sex) marriage in Alaska]
. Robinson, B. A. Religioustolerance.org. 2002 (last update 2014-OCT-18). Accessed 2015-DEC-26. Contrary to the allegations that there was no talk of a Federal Marriage Amendment until 2004, Congressional records show that such an amendment was in fact proposed in the U.S. House of Representatives in 2002.
Impact
The
General Accounting Office
The U.S. Government Accountability Office (GAO) is a legislative branch government agency that provides auditing, evaluative, and investigative services for the United States Congress. It is the supreme audit institution of the federal govern ...
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
" 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
The Employee Retirement Income Security Act of 1974 (ERISA) (, codified in part at ) is a U.S. federal tax and labor law that establishes minimum standards for pension plans in private industry. It contains rules on the federal income tax eff ...
(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
"Don't ask, don't tell" (DADT) was the official United States policy on military service of non-heterosexual people, instituted during the Clinton administration. The policy was issued under Department of Defense Directive 1304.26 on December ...
," in September 2011, Admiral
Mike Mullen
Mike may refer to:
Animals
* Mike (cat), cat and guardian of the British Museum
* Mike the Headless Chicken, chicken that lived for 18 months after his head had been cut off
* Mike (chimpanzee), a chimpanzee featured in several books and document ...
,
Chairman of the Joint Chiefs of Staff
The chairman of the Joint Chiefs of Staff (CJCS) is the presiding officer of the United States Joint Chiefs of Staff (JCS). The chairman is the highest-ranking and most senior military officer in the United States Armed Forces Chairman: app ...
, 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 debate
The 2000 Republican Party platform endorsed DOMA in general terms and indicated concern about
judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
: "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
George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
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
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
's 2008
political platform
A political party platform (US English), party program, or party manifesto (preferential term in British & often Commonwealth English) is a formal set of principle goals which are supported by a political party or individual candidate, in order ...
endorsed the repeal of DOMA. On June 12, 2009, the
Justice Department
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
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
The Human Rights Campaign (HRC) is an American LGBTQ advocacy group. It is the largest LGBTQ political lobbying organization within the United States. Based in Washington, D.C., the organization focuses on protecting and expanding rights for LGB ...
President
Joe Solmonese
Joe Solmonese is a political strategist and activist who served as president of the Human Rights Campaign of the United States and its affiliate the Human Rights Campaign Foundation. He was appointed to this position on March 9, 2005, replacing C ...
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
Lambda Legal Defense and Education Fund, better known as Lambda Legal, is an American civil rights organization that focuses on lesbian, gay, bisexual, and transgender (LGBT) communities as well as people living with HIV/ AIDS ( PWAs) through i ...
, an LGBT
impact litigation
Strategic litigation, also known as impact litigation, is the practice of bringing lawsuits intended to effect societal change. Impact litigation cases may be class action lawsuits or individual claims with broader significance, and may rely on s ...
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
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
Eric Holder
Eric Himpton Holder Jr. (born January 21, 1951) is an American lawyer who served as the 82nd Attorney General of the United States from 2009 to 2015. Holder, serving in the administration of President Barack Obama, was the first African America ...
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
The speaker of a deliberative assembly, especially a legislative body, is its presiding officer, or the chair. The title was first used in 1377 in England.
Usage
The title was first recorded in 1377 to describe the role of Thomas de Hungerf ...
John Boehner
John Andrew Boehner ( ; born , 1949) is an American retired politician who served as the 53rd speaker of the United States House of Representatives from 2011 to 2015. A member of the Republican Party, he served 13 terms as the U.S. represe ...
, Holder noted that Congress could participate in these lawsuits.
On February 24, the Department of Justice notified the First Circuit Court of Appeals
The United States Court of Appeals for the First Circuit (in case citations, 1st Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts:
* District of Maine
* District of Massachusetts
* ...
that it would "cease to defend" ''Gill
A gill () is a respiratory organ that many aquatic organisms use to extract dissolved oxygen from water and to excrete carbon dioxide. The gills of some species, such as hermit crabs, have adapted to allow respiration on land provided they are ...
'' and '''' 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
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous).
In order t ...
standard of review. The DOJ made similar arguments in a filing in ''Gill'' on July 7.
In June 2012, filing an amicus brief
An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on ...
in ''Golinski'', two former Republican Attorneys General, Edwin Meese
Edwin Meese III (born December 2, 1931) is an American attorney, law professor, author and member of the Republican Party who served in official capacities within the Ronald Reagan's gubernatorial administration (1967–1974), the Reagan pres ...
and John Ashcroft
John David Ashcroft (born May 9, 1942) is an American lawyer, lobbyist and former politician who served as the 79th U.S. Attorney General in the George W. Bush administration from 2001 to 2005. A former U.S. Senator from Missouri and the 50th ...
, 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
The Bipartisan Legal Advisory Group (BLAG) has been a standing body of the U.S. House of Representatives since 1993 that directs the activities of the . BLAG can direct the General Counsel to participate in litigation or file an ''amicus curiae'' ...
(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
Paul Drew Clement (born June 24, 1966) is an American lawyer who served as U.S. Solicitor General from 2004 to 2008 and is known for his advocacy before the U.S. Supreme Court. He established his own law firm, Clement & Murphy, in 2022 after le ...
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
King & Spalding LLP is an American international corporate law firm that is headquartered in Atlanta, Georgia and with offices located in North America, Europe, the Middle East and Asia. It has over 1,200 lawyers in 23 offices globally. It is Am ...
, the law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients (individuals or corporations) about their legal rights and responsibilities, and to r ...
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
Bancroft PLLC (formerly Bancroft Associates PLLC) was an American law firm headquartered in Washington, D.C. The firm was founded in Washington, D.C. by former Assistant Attorney General Viet D. Dinh. Bancroft specializes in Supreme Court and ...
, 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.... fectively defending OMAdoes 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
''Gill et al. v. Office of Personnel Management'', 682 F.3d 1 (1st Cir. 2012) is a United States Court of Appeals for the First Circuit decision that affirmed the judgment of the District Court for the District of Massachusetts in a lawsuit challe ...
''
12-13
as ''BLAG v. Gill'')
* ''''
12-15
as ''Dept. of HHS v. Massachusetts''
* ''Golinski v. Office of Personnel Management
''Golinski v. Office of Personnel Management'', 824 F. Supp. 2d 968 (N.D. Cal. 2012), was a lawsuit filed in the United States District Court for the Northern District of California. The plaintiff, Karen Golinski, challenged the constitutionali ...
''
12-16
''OPM v. Golinski'')
* '' Windsor v. United States''
12-63
* ''Pedersen v. Office of Personnel Management
''Pedersen v. Office of Personnel Management'' is a federal lawsuit challenging the constitutionality of the Defense of Marriage Act, Section 3, which defined the federal definition of marriage to be a union of a man and a woman, entirely excluding ...
''
12-231
''Golinski v. Office of Personnel Management''
''Golinski v. Office of Personnel Management
''Golinski v. Office of Personnel Management'', 824 F. Supp. 2d 968 (N.D. Cal. 2012), was a lawsuit filed in the United States District Court for the Northern District of California. The plaintiff, Karen Golinski, challenged the constitutionali ...
'' 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
Alex Kozinski (; born July 23, 1950) is a Romanian-American jurist and lawyer who was a judge on the United States Court of Appeals for the Ninth Circuit, U.S. Court of Appeals for the Ninth Circuit from 1985 to 2017. He was a prominent and inf ...
, in his administrative capacity, ruled in 2009 that she was entitled to spousal health benefits, but the Office of Personnel Management
An office is a space where an organization's employees perform administrative work in order to support and realize objects and goals of the organization. The word "office" may also denote a position within an organization with specific duti ...
(OPM) announced that it would not comply with the ruling.
On March 17, 2011, U.S. District Judge Jeffrey White
Jeffrey Steven White (born September 2, 1945) is a Senior United States district judge of the United States District Court for the Northern District of California.
Early life, education, and career
Born in New York City, New York, White recei ...
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,[Statement of the Attorney General on Litigation Involving the Defense of Marriage Act]
February 23, 2011. Retrieved July 5, 2012. the Bipartisan Legal Advisory Group
The Bipartisan Legal Advisory Group (BLAG) has been a standing body of the U.S. House of Representatives since 1993 that directs the activities of the . BLAG can direct the General Counsel to participate in litigation or file an ''amicus curiae'' ...
(BLAG), an arm of the House of Representatives, took up the defense. Former United States Solicitor General
The solicitor general of the United States is the fourth-highest-ranking official in the United States Department of Justice. Elizabeth Prelogar has been serving in the role since October 28, 2021.
The United States solicitor general represent ...
Paul Clement
Paul Drew Clement (born June 24, 1966) is an American lawyer who served as U.S. Solicitor General from 2004 to 2008 and is known for his advocacy before the U.S. Supreme Court. He established his own law firm, Clement & Murphy, in 2022 after le ...
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.
On February 22, 2012, White ruled for Golinski, finding DOMA "violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution." He wrote that Section 3 of DOMA could not pass the "heightened scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous).
In order t ...
" or the "rational basis
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment ...
" test. He wrote,
The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.
While the case was on appeal to the Ninth Circuit, on July 3, 2012, the DOJ asked the Supreme Court to review the case before the Ninth Circuit decides it so it can be heard together with two other cases in which DOMA Section 3 was held unconstitutional, ''Gill v. Office of Personnel Management
''Gill et al. v. Office of Personnel Management'', 682 F.3d 1 (1st Cir. 2012) is a United States Court of Appeals for the First Circuit decision that affirmed the judgment of the District Court for the District of Massachusetts in a lawsuit challe ...
'' and ''''. The Supreme Court chose to hear ''Windsor'' instead of these cases, and following the Supreme Court decision in ''Windsor'' the Ninth Circuit dismissed the appeal in ''Golinski'' with the consent of all parties on July 23.
''Gill'' and ''Massachusetts''
On March 3, 2009, GLAD filed a federal court challenge, ''Gill v. Office of Personnel Management
''Gill et al. v. Office of Personnel Management'', 682 F.3d 1 (1st Cir. 2012) is a United States Court of Appeals for the First Circuit decision that affirmed the judgment of the District Court for the District of Massachusetts in a lawsuit challe ...
'', based on the Equal Protection Clause and the federal government's consistent deference to each state's definition of marriage prior to the enactment of DOMA. The case questioned only the DOMA provision that the federal government defines marriage as the union of a man and a woman. On May 6, 2010, Judge Joseph L. Tauro heard arguments in the U.S. District Court in Boston.
On July 8, 2009, Massachusetts Attorney General Martha Coakley
Martha Mary Coakley (born July 14, 1953) is an American lobbyist and lawyer who served as Attorney General of Massachusetts from 2007 to 2015. Prior to serving as Attorney General, she was District Attorney of Middlesex County from 1999 to 20 ...
filed a suit, '''', challenging the constitutionality of DOMA. The suit claims that Congress "overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people." Tauro, the judge also handling ''Gill'', heard arguments on May 26, 2010.
On July 8, 2010, Tauro issued his rulings in both ''Gill'' and ''Massachusetts'', granting summary judgment
In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes ...
for the plaintiffs in both cases. He found in ''Gill'' that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause
In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
of the Fifth Amendment to the U.S. Constitution
The Fifth Amendment (Amendment V) to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amendme ...
. In ''Massachusetts'' he held that the same section of DOMA violates the Tenth Amendment and falls outside Congress' authority under the Spending Clause
The Taxing and Spending Clause (which contains provisions known as the General Welfare Clause and the Uniformity Clause), Article I, Section 8, Clause 1 of the United States Constitution, grants the federal government of the United States its p ...
of the Constitution.[DOMA decisions released](_blank)
Bay Windows. July 8, 2010. Those decisions were stayed after the DOJ filed an appeal on October 12, 2010.
On November 3, 2011, 133 House Democrats filed an amicus brief in support of the plaintiffs in ''Gill'' and ''Massachusetts'', asserting their belief that Section 3 of DOMA was unconstitutional. Included among the members of Congress signing the brief were 14 members who had voted for the bill in 1996. Seventy major employers also filed an amicus brief supporting the plaintiffs. A three-judge panel heard arguments in the case on April 4, 2012, during which the DOJ for the first time took the position that it could not defend Section 3 of DOMA under any level of scrutiny. On May 31, 2012, the panel unanimously affirmed Tauro's ruling, finding Section 3 of DOMA unconstitutional.
Massachusetts v. United States Department of Health and Human Services
'', No. 10-2204, slip op. (May 31, 2012). On June 29, BLAG filed a petition for certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
with the Supreme Court. The DOJ did so on July 3, while asking the Supreme Court to review ''Golinski'' as well. The Commonwealth of Massachusetts filed a response to both petitions adding the Spending Clause and Tenth Amendment issues as questions presented.[The Commonwealth also filed its own petition in ''Massachusetts'' in case the court found the response was not the proper way to raise those issues.] The Supreme Court denied these petitions on June 27, 2013, following its decision in ''Windsor''.
''United States v. Windsor''
On November 9, 2010, the American Civil Liberties Union
The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
filed ''United States v. Windsor
''United States v. Windsor'', 570 U.S. 744 (2013), is a landmark United States Supreme Court civil rights case concerning same-sex marriage. The Court held that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition o ...
'' in New York on behalf of a surviving same-sex spouse whose inheritance from her deceased spouse had been subject to federal taxation as if they were unmarried. New York is part of the Second Circuit
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juris ...
, where no precedent exists for the standard of review to be followed in sexual-orientation discrimination cases.
New York Attorney General Eric Schneiderman
Eric Tradd Schneiderman (born December 31, 1954) is an American lawyer and politician who served as the 65th Attorney General of New York from 2011 until his resignation in May 2018. Schneiderman, a member of the Democratic Party, spent ten year ...
filed a brief supporting Windsor's claim on July 26, 2011.
On June 6, 2012, Judge Barbara Jones ruled that based on rational basis review Section 3 of DOMA is unconstitutional and ordered the requested tax refund be paid to Windsor. The plaintiff commented, "It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers." Windsor's attorneys filed a petition of certiorari with the Supreme Court on July 16, asking for the case to be considered without waiting for the Second Circuit's review. On October 18, the Second Circuit Court of Appeals upheld the lower court's ruling that Section 3 of DOMA is unconstitutional. According to an ACLU press release, this ruling was "the first federal appeals court decision to decide that government discrimination against gay people gets a more exacting level of judicial review". In an opinion authored by Chief Judge Dennis Jacobs, the Second Circuit Court of Appeals stated:
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition, but law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples.
On December 7, 2012, the Supreme Court agreed to hear the case. Oral arguments were heard on March 27, 2013. In a 5–4 decision on June 26, 2013, the Court ruled Section 3 of DOMA to be unconstitutional, declaring it "a deprivation of the liberty of the person protected by the Fifth Amendment."
On July 18, 2013, the Bipartisan Legal Advisory Group
The Bipartisan Legal Advisory Group (BLAG) has been a standing body of the U.S. House of Representatives since 1993 that directs the activities of the . BLAG can direct the General Counsel to participate in litigation or file an ''amicus curiae'' ...
(BLAG), which had mounted a defense of Section 3 when the administration declined to, acknowledged that in ''Windsor'' " e Supreme Court recently resolved the issue of DOMA Section 3's constitutionality" and said "it no longer will defend that statute."
''Pedersen v. Office of Personnel Management''
''Pedersen v. Office of Personnel Management
''Pedersen v. Office of Personnel Management'' is a federal lawsuit challenging the constitutionality of the Defense of Marriage Act, Section 3, which defined the federal definition of marriage to be a union of a man and a woman, entirely excluding ...
'' is a case filed by GLAD in Connecticut on behalf of same-sex couples in Connecticut, Vermont, and New Hampshire, in which GLAD repeats the arguments it made in ''Gill''.
On July 31, 2012, Judge Vanessa Lynne Bryant
Vanessa Lynne Bryant (born January 27, 1954) is a Senior United States district judge of the United States District Court for the District of Connecticut.
Early life
Bryant was born in Queens, New York, and graduated from Howard University wit ...
ruled that "having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution." She held that "laws that classify people based on sexual orientation should be subject to heightened scrutiny by courts" but determined Section 3 of DOMA "fails to pass constitutional muster under even the most deferential level of judicial scrutiny." The case was appealed to the Second Circuit, and on August 21, 2012, Pedersen asked the Supreme Court to review the case before the Second Circuit decides it so it can be heard together with ''Gill v. Office of Personnel Management
''Gill et al. v. Office of Personnel Management'', 682 F.3d 1 (1st Cir. 2012) is a United States Court of Appeals for the First Circuit decision that affirmed the judgment of the District Court for the District of Massachusetts in a lawsuit challe ...
'' and ''''. The Supreme Court denied these petitions on June 27, 2013, following its decision in ''Windsor''.
Other cases
Other cases that challenged DOMA include:
* ''Dragovich v. Department of the Treasury'', No. 10-1564 (N.D. Cal.), a class action in which California same-sex couples seek equal access to California's long-term care insurance program for public employees and their families. U.S. District Court Judge Claudia Wilken
Claudia Ann Wilken (born August 1949) is a Senior United States District Court Judge of the United States District Court for the Northern District of California.
Education and career
Born in Minneapolis, Minnesota, Wilken received a Bachelor o ...
on May 24, 2012, found Section 3 of DOMA and certain IRS regulations violated the plaintiffs' equal protection rights.
* ''Hara v. Office of Personnel Management'', No. 09-3134 (Fed. Cir.) Hara is one of the plaintiffs in ''Gill''.
* ''Torres-Barragan v. Holder'', No. 10-55768 (9th Cir.) An immigration-related DOMA challenge in which the district court rejected the constitutional challenges.
* ''Cozen O'Connor v. Tobits'', No. 11-00045-CDJ, Pennsylvania, in which two parties dispute who inherits the proceeds of a law firm's profit-sharing plan under ERISA and DOMA. The DOJ filed a brief arguing the unconstitutionality of DOMA. Following the decision in ''Windsor'', Judge C. Darnell Jones II
Cardozie Darnell Jones II (born November 23, 1949) is a Senior status, Senior United States federal judge, United States district judge of the United States District Court for the Eastern District of Pennsylvania.
Education and career
Born in Cl ...
ruled that the widow qualified as the deceased's spouse since Illinois, their state of domicile, recognized them as spouses in a civil union as defined by Illinois. The deceased's parents dropped their appeal on August 30.
* On April 5, 2012, Chief Judge James Ware of the U.S. District Court for the Northern District of California
The United States District Court for the Northern District of California (in case citations, N.D. Cal.) is the federal United States district court whose jurisdiction comprises the following counties of California: Alameda, Contra Costa, Del ...
ordered the federal court clerk to reimburse Christopher Nathan, a court employee, for the costs of health insurance coverage for his same-sex spouse comparable to that denied him by Section 3 of DOMA. On November 21, 2012, the Ninth Circuit Judicial Conference affirmed Ware's decision and ordered the court to determine the amount due Nathan and pay him within 10 days.
Military and veterans cases
On October 13, 2011, Carmen Cardona, a U.S. Navy veteran, filed a lawsuit in the United States Court of Appeals for Veterans Claims
The United States Court of Appeals for Veterans Claims (in case citations, Vet. App.) is a federal court of record that was established under Article I of the United States Constitution, and is thus referred to as an Article I tribunal (court) ...
seeking disability benefits for her wife that the Veterans Administration and the Board of Veterans Appeals had denied. Cardona is represented by the Yale Law School Legal Services Clinic. At the request of BLAG, which is defending the government's action, and over Cardona's objections, the court postponed oral argument in ''Cardona v. Shinseki
''Cardona v. Shinseki'' was an appeal brought in the United States Court of Appeals for Veterans Claims (CAVC) of a decision by the Board of Veterans' Appeals upholding the denial of service-connected disability benefits for the dependent wife of ...
'' pending the Supreme Court's disposition of writs of certiorari in other DOMA cases.
On October 27, 2011, the Servicemembers Legal Defense Network
OutServe-SLDN was a network of LGBT military personnel, formed as a result of the merger between OutServe and the Servicemembers Legal Defense Network. OutServe-SLDN was one of the largest LGBT employee resource groups in the world. OutServe was ...
(SLDN) brought suit in federal court on behalf of several military servicemembers and veterans in same-sex marriages. In a November 21 filing in the case of ''McLaughlin v. Panetta'', they wrote, "Any claim that DOMA, as applied to military spousal benefits, survives rational basis review is strained because paying unequal benefits to service members runs directly counter to the military values of uniformity, fairness and unit cohesion." The benefits at issue include medical and dental benefits, basic housing and transportation allowances, family separation benefits, visitation rights in military hospitals, and survivor benefit plans. The case was assigned to Judge Richard G. Stearns. One of the plaintiffs in the case, lesbian Charlie Morgan, who was undergoing chemotherapy, met with an assistant to Boehner on February 9, 2012, to ask him to consider not defending DOMA. The case is on hold at the request of both sides in anticipation of the outcome of two other First Circuit cases on appeal, ''Gill v. Office of Personnel Management
''Gill et al. v. Office of Personnel Management'', 682 F.3d 1 (1st Cir. 2012) is a United States Court of Appeals for the First Circuit decision that affirmed the judgment of the District Court for the District of Massachusetts in a lawsuit challe ...
'' and ''''. On February 17, the DOJ announced it could not defend the constitutionality of the statutes challenged in the case. In May 2012, the parties filed briefs arguing whether BLAG has a right to intervene. On June 27, Stearns asked the parties to explain by July 18 why given the decision in ''Windsor'' he should not find for the plaintiffs. On July 18, BLAG's response acknowledged that " e Supreme Court recently resolved the issue of DOMA Section 3's constitutionality" and asked to be allowed to withdraw from the case. It took no position on the two statutes at issue in the case, which define a "spouse" as "a person of the opposite sex", except to say that "the question of whether hat definition
A hat is a head covering which is worn for various reasons, including protection against weather conditions, ceremonial reasons such as university graduation, religious reasons, safety, or as a fashion accessory. Hats which incorporate mecha ...
is constitutional remains open".
Tracey Cooper-Harris, an Army veteran from California, sued the Veterans Administration
The United States Department of Veterans Affairs (VA) is a Cabinet-level executive branch department of the federal government charged with providing life-long healthcare services to eligible military veterans at the 170 VA medical centers and ...
and the DOJ in federal court on February 1, 2012, asking for her wife to receive the benefits normally granted to spouses of disabled veterans. BLAG sought a delay in ''Cooper-Harris v. United States'' pending the resolution of ''Golinski'', which the attorneys for Cooper-Harris, the Southern Poverty Law Center
The Southern Poverty Law Center (SPLC) is an American 501(c)(3) nonprofit legal advocacy organization specializing in civil rights and public interest litigation. Based in Montgomery, Alabama, it is known for its legal cases against white su ...
, opposed. The court denied BLAG's motion on August 4. In February 2013, Judge Consuelo Marshall rejected the DOJ's argument that the case could only be heard by the Board of Veterans' Appeals
The Board of Veterans' Appeals (BVA) is an administrative tribunal within the United States Department of Veterans Affairs (VA), located in Washington, D.C. Established by Executive Order on July 28, 1933, it determines whether U.S. military vete ...
and allowed the case to proceed. BLAG asked to withdraw from the lawsuit on July 22.
Bankruptcy court
In May 2011, DOMA-based challenges by the Department of Justice to joint petitions for bankruptcy by married same-sex couples were denied in two cases, one in the Southern District of New York on May 4 and one in the Eastern District of California on May 31. Both rulings stressed practical considerations and avoided ruling on DOMA.
On June 13, 2011, 20 of the 25 judges of the U.S. Bankruptcy Court for the Central District of California signed an opinion in the case ''in re Balas and Morales'' that found that a same-sex married couple filing for bankruptcy "have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled." The decision found DOMA Section 3 unconstitutional and dismissed BLAG's objections to the joint filing:
Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors' right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors.
A spokesman for House Speaker Boehner said BLAG would not appeal the ruling, On July 7, 2011, the DOJ announced that after consultation with BLAG it would no longer raise objections to "bankruptcy petitions filed jointly by same-sex couples who are married under state law".
Immigration cases
Bi-national same-sex couples were kept from legally living in the United States by DOMA's Section 3, which prevented one spouse from sponsoring the other for a green card
A green card, known officially as a permanent resident card, is an identity document which shows that a person has permanent residency in the United States. ("The term 'lawfully admitted for permanent residence' means the status of having been ...
. Following some uncertainty after the Obama Administration determined Section 3 to be unconstitutional, the United States Citizenship and Immigration Services
U.S. Citizenship and Immigration Services (USCIS) is an agency of the United States Department of Homeland Security (DHS) that administers the country's naturalization and immigration system. It is a successor to the Immigration and Naturalizati ...
(USCIS) reaffirmed its policy of denying such applications. With respect to obtaining a visitor's visa, Bureau rules treated bi-national same-sex spouses the same as bi-national opposite-sex unmarried partners under the classification "cohabiting partners".
Tim Coco and Genesio J. Oliveira, a same-sex couple married in Massachusetts in 2005, successfully challenged this policy and developed a model since followed by other immigration activists. The U.S. refused to recognize their marriage, and in 2007 Oliveira, a Brazilian national, accepted "voluntary departure" and returned to Brazil. They conducted a national press campaign A ''Boston Globe
''The Boston Globe'' is an American daily newspaper founded and based in Boston, Massachusetts. The newspaper has won a total of 27 Pulitzer Prizes, and has a total circulation of close to 300,000 print and digital subscribers. ''The Boston Glob ...
'' editorial commented, "Great strides toward equality for gays have been made in this country, but the woeful fate of Tim Coco and Genesio Oliveira shows that thousands of same-sex couples, even in Massachusetts, still aren't really full citizens." The editorial gained the attention of Senator John F. Kerry
John Forbes Kerry (born December 11, 1943) is an American attorney, politician and diplomat who currently serves as the first United States special presidential envoy for climate. A member of the Forbes family and the Democratic Party (Unite ...
, who first lobbied Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
Eric Holder
Eric Himpton Holder Jr. (born January 21, 1951) is an American lawyer who served as the 82nd Attorney General of the United States from 2009 to 2015. Holder, serving in the administration of President Barack Obama, was the first African America ...
without success. He then gained the support of Homeland Security Secretary
The United States secretary of homeland security is the head of the United States Department of Homeland Security, the federal department tasked with ensuring public safety in the United States. The secretary is a member of the Cabinet of the U ...
Janet Napolitano
Janet Ann Napolitano (; born November 29, 1957) is an American politician, lawyer, and university administrator who served as the 21st governor of Arizona from 2003 to 2009 and third United States secretary of homeland security from 2009 to 20 ...
, who granted Oliveira humanitarian parole
Parole, in the immigration laws of the United States, generally refers to official permission to enter and remain temporarily in the United States, under the supervision of the U.S. Department of Homeland Security (DHS), without formal admission, ...
, enabling the couple to reunite in the U.S. in June 2010. Humanitarian parole is granted on a case-by-case basis at the Secretary's discretion.
On September 28, 2011, in ''Lui v. Holder'', U.S. District Court Judge Stephen V. Wilson rejected a challenge to DOMA, citing '' Adams v. Howerton'' (1982). The plaintiffs in that case had unsuccessfully challenged the denial of immediate relative status to the same-sex spouse of an American citizen. Early in 2012, two bi-national same-sex couples were granted "deferred action" status, suspending deportation proceedings against the non-U.S. citizen for a year. A similar Texas couple had a deportation case dismissed in March 2012, leaving the non-citizen spouse unable to work legally in the United States but no longer subject to the threat of deportation.
On January 5, 2012, the U.S. District Court for the Northern District of Illinois
The United States District Court for the Northern District of Illinois (in case citations, N.D. Ill.) is the federal trial-level court with jurisdiction over the northern counties of Illinois.
Appeals from the Northern District of Illinois ar ...
in Chicago decided the suit of a same-sex binational couple. Demos Revelis and Marcel Maas, married in Iowa in 2010, sought to prevent the USCIS from applying Section 3 of DOMA to Revelis's application for a permanent residence visa for Maas and, in the court's words, "that their petition be reviewed and decided on the same basis as other married couples." Judge Harry D. Leinenweber, a Reagan appointee, denied the government's motion to dismiss. BLAG has argued for the suit to be dismissed. In July the court stayed proceedings until mid-October because the USCIS was considering denying the plaintiffs' request on grounds unrelated to DOMA.
On April 2, 2012, five bi-national same-sex couples represented by Immigration Equality
Immigration Equality is a United States nonprofit organization founded in 1994. Based in New York, it both advocates for and directly represents LGBTQ and HIV-positive people in the immigration system.
The organization provides guidance and l ...
and Paul, Weiss filed a lawsuit, ''Blesch v. Holder'', in the District Court for the Eastern District of New York, claiming that Section 3 of DOMA violated their equal protection rights by denying the U.S. citizen in the relationship the same rights in the green card application process granted a U.S. citizen who is in a relationship of partners of the opposite sex. On July 25, Chief Judge Carol Amon
Carol Ann Bagley Amon (born April 23, 1946) is a Senior United States district judge of the United States District Court for the Eastern District of New York.
Education and early career
Amon was born in Richmond, Virginia. She received a Bache ...
stayed the case pending the resolution of ''Windsor'' by the Second Circuit.
Immigration rights advocate Lavi Soloway reported on June 19, 2012, that the Board of Immigration Appeals (BIA) had in four cases responded to green card denials on the part of the U.S. Citizenship and Immigration Services (USCIS) by asking the USCIS to document the marital status of the same-sex couples and determine whether the foreign national would qualify for a green card in the absence of DOMA Section 3. He said the BIA is "essentially setting the stage for being able to approve the petitions in a post-DOMA universe."
On April 19, 2013, U.S. District Judge Consuelo Marshall ordered that a suit brought in July 2012 by Jane DeLeon, a Philippine citizen, and her spouse, Irma Rodriguez, a U.S. citizen, could proceed as a class action. The plaintiffs, represented by the Center for Human Rights and Constitutional Law, contended that DeLeon was denied a residency waiver because of DOMA Section 3.
On June 28, 2013, the USCIS notified U.S. citizen Julian Marsh that it had approved the green card petition for his Bulgarian husband Traian Popov. Both are residents of Florida. On July 3, the USCIS office in Centennial, Colorado, granted Cathy Davis, a citizen of Ireland, a green card based on her marriage to U.S. citizen Catriona Dowling.
Tribunals
In 2009, United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
Judge Stephen Reinhardt
Stephen Roy Reinhardt (born Stephen Roy Shapiro; March 27, 1931 – March 29, 2018) was a United States circuit judge of the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was the last federal a ...
declared DOMA unconstitutional in ''in re Levenson'', an employment dispute resolution tribunal case, where the federal government refused to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson. As an employee of the federal judiciary, Levenson is prohibited from suing his employer in federal court. Rather, employment disputes are handled at employment dispute resolution tribunals in which a federal judge hears the dispute in their capacity as a dispute resolution official.
Challenges to Section 2 in federal court
Section 2 of DOMA states to give legal relief to any state from recognizing same-sex marriages performed in other jurisdictions. Section 2 posits a conflict between states' rights and civil rights. Various federal lawsuits, some filed alongside challenges to Section 3, have challenged Section 2.
* ''In re Kandu'': A same-sex couple in the state of Washington, who had married in Canada, attempted to file a joint bankruptcy petition, but were not allowed to do so.
* ''Wilson v. Ake'', an unsuccessful attempt by a Florida same-sex couple, married in Massachusetts, to have their marriage license accepted in Florida.
* ''Smelt v. Orange County'' and ''Smelt v. United States'': In February 2004, Arthur Smelt and Christopher Hammer sued Orange County, California
Orange County is located in the Los Angeles metropolitan area in Southern California. As of the 2020 census, the population was 3,186,989, making it the third-most-populous county in California, the sixth-most-populous in the United States, a ...
, in federal court for refusing to issue them a marriage license. The district court ruled that the couple did not have standing
Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
to challenge Section 2 of DOMA and rejected their challenge to the constitutionality of Section 3. On May 5, 2006, the United States Court of Appeals for the Ninth Circuit dismissed the suit, and on October 10 the United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
refused to consider the couple's appeal. On March 9, 2009, the same couple, having legally married in California, filed '' Smelt v. United States'', challenging the constitutionality of DOMA and California's Proposition 8
Proposition 8, known informally as Prop 8, was a California ballot proposition and a constitutional amendment, state constitutional amendment intended to ban same-sex marriage; it passed in the California state elections, November 2008, Novem ...
. District Judge David O. Carter
David Ormon Carter (born March 28, 1944) is a United States district judge of the United States District Court for the Central District of California.
Education and military service
In college he lettered in cross country and track on the teams o ...
dismissed the case on August 24, because the couple had not applied for and been denied any federal benefit and therefore lacked "an injury in fact."
* ''Bishop v. United States'': Two lesbian couples in Oklahoma, one of which couples sought a marriage license and the other to have the state recognize either their Canadian marriage or their Vermont civil union. The court stayed consideration of the case pending the outcome of ''Windsor''. Later it ruled the couple challenging Section 2 did not have standing, but ruled Oklahoma's same-sex marriage ban unconstitutional under ''Bishop v. Oklahoma
Same-sex marriage in Oklahoma has been legal since October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. On that day, following the Supreme Court of the United States, U.S. Supreme Court's refusa ...
''.
''Obergefell v. Hodges''
On June 26, 2015, the U.S. Supreme Court ruled in ''Obergefell v. Hodges
''Obergefell v. Hodges'', ( ), is a landmark LGBT rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection ...
'' that the 14th Amendment requires all U.S. state laws to recognize same-sex marriages. This left Section 2 of DOMA as superseded and unenforceable.
Repeal
On September 15, 2009, three Democratic members of Congress, Jerrold Nadler
Jerrold Lewis Nadler (; born June 13, 1947) is an American lawyer and politician who since 2013 has served as the U.S. representative for , which includes Manhattan's west side and parts of Brooklyn. A member of the Democratic Party, he is in ...
of New York, Tammy Baldwin
Tammy Suzanne Green Baldwin (born February 11, 1962) is an American lawyer and politician who has served as the junior United States senator from Wisconsin since 2013. A member of the Democratic Party, she served three terms in the Wisconsin Stat ...
of Wisconsin
Wisconsin () is a state in the upper Midwestern United States. Wisconsin is the 25th-largest state by total area and the 20th-most populous. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake M ...
, and Jared Polis
Jared Schutz Polis (; born May 12, 1975) is an American politician, entrepreneur, businessman, and philanthropist, serving as the 43rd governor of Colorado since January 2019. He served one term on the Colorado State Board of Education from 200 ...
of Colorado
Colorado (, other variants) is a state in the Mountain West subregion of the Western United States. It encompasses most of the Southern Rocky Mountains, as well as the northeastern portion of the Colorado Plateau and the western edge of t ...
, introduced legislation to repeal DOMA called the Respect for Marriage Act
The Respect for Marriage Act (RFMA; ) is a landmark United States federal law passed by the 117th United States Congress and signed into law by President Joe Biden. It repeals the Defense of Marriage Act (DOMA), requires the U.S. federal governm ...
. The bill had 91 original co-sponsors in the House of Representatives and was supported by Clinton, Barr, and several legislators who voted for DOMA. Congressman Barney Frank
Barnett Frank (born March 31, 1940) is a former American politician. He served as a member of the U.S. House of Representatives from Massachusetts from 1981 to 2013. A Democrat, Frank served as chairman of the House Financial Services Committee ...
and John Berry, head of the Office of Personnel Management, did not support that effort, stating that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as ''Gill v. Office of Personnel Management
''Gill et al. v. Office of Personnel Management'', 682 F.3d 1 (1st Cir. 2012) is a United States Court of Appeals for the First Circuit decision that affirmed the judgment of the District Court for the District of Massachusetts in a lawsuit challe ...
'' filed by Gay & Lesbian Advocates & Defenders
GLBTQ Legal Advocates & Defenders (GLAD) is a non-profit legal rights organization in the United States. The organization works to end discrimination based on sexual orientation, HIV status, and gender identity and expression. The organization p ...
(GLAD).
Following Holder's announcement that the Obama Administration would no longer defend DOMA Section 3 in court, on March 16, 2011, Senator Dianne Feinstein
Dianne Goldman Berman Feinstein ( ; born Dianne Emiel Goldman; June 22, 1933) is an American politician who serves as the senior United States senator from California, a seat she has held since 1992. A member of the Democratic Party, she was ...
introduced the Respect for Marriage Act in the Senate again and Nadler introduced it in the House. The Senate Judiciary Committee voted 10–8 in favor of advancing the bill to the Senate floor, but observers believed it would not gain the 60 votes needed to end debate and bring it to a vote.
After the Supreme Court struck down DOMA Section 3 on June 26, 2013, Feinstein and Nadler reintroduced the Respect for Marriage Act as and . The Respect for Marriage Act cleared the 60 vote filibuster hurdle on November 16, 2022, when the Senate voted 62–37 to advance it. Joe Biden signed the repeal on December 13, 2022.
See also
* LGBT rights in the United States
Lesbian, gay, bisexual and transgender (LGBT) rights in the United States are among the most socially, culturally, and legally permissive and advanced in the world, with public opinion and jurisprudence on the issue changing significantly si ...
* Marriage Protection Act (2004)
* Same-sex unions in the United States
Same-sex unions in the United States are available in various forms in all states and territories, except American Samoa. All states have legal same-sex marriage, while others have the options of civil unions, domestic partnerships, or reciprocal ...
* Respect for Marriage Act
The Respect for Marriage Act (RFMA; ) is a landmark United States federal law passed by the 117th United States Congress and signed into law by President Joe Biden. It repeals the Defense of Marriage Act (DOMA), requires the U.S. federal governm ...
(2022)
Explanatory notes
Citations
General and cited references section
* Feigen, Brenda. "Same-Sex Marriage: An Issue of Constitutional rights not Moral Opinions". 2004. 27 ''Harv. Women's L. J.'' 345.
* Carter, W. Burlette. "The Federal Law of Marriage: Deference, Deviation and DOMA." 2013. 21 ''Am. U. J. Gender, Soc. Pol'y & L'' 70
The 'Federal Law of Marriage': Deference, Deviation, and DOMA
* "Same Sex Marriage Passage". ''CQ Weekly''. Congressional Quarterly. May 2, 2005.
* "Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage." 2004. 117 ''Harv. L. Rev.'' 2684. . .
*
* United States. 104th Congress. Defense of Marriage Act. House of Representatives Committee Report. 1996.
* Wardle, Lynn D. "A Critical Analysis of Constitutional Claims for Same Sex Marriage." 1996. 1996 ''B.Y.U.L. Rev.'' 1.
External links
GovTrack
Library of Congress
{{DEFAULTSORT:Defense Of Marriage Act
1996 in LGBT history
1996 in the United States
Acts of the 104th United States Congress
Clinton administration controversies
Discrimination against LGBT people in the United States
LGBT rights in the United States
Repealed United States legislation
Same-sex marriage in the United States
United States federal civil rights legislation