The Defense of Marriage Act
On June 26, 2013, the United States Supreme Court ruled in Windsor v. United States that Section 3 of the so-called Defense of Marriage Act, the 1996 law that denies legally married same-sex couples over 1,100 protections and responsibilities of marriage, is unconstitutional. By striking down Section 3 of DOMA, the Supreme Court has affirmed that all loving and committed couples who marry deserve equal legal respect and treatment. It marks an enormous victory for equal justice under the law and ends DOMA’s two-tiered system for marriage, which for over 16 years has forced the government to pick and choose among marriages and create a "gay exception" that only caused pain, uncertainty, and financial harm.
The momentous ruling in the Windsor case marks the first step in ending the days of DOMA, a law that must still be fully overturned. We know that all married couples - including same-sex couples - should be treated as married by the federal government no matter where they live. Access to federal marital protections for married same-sex couples who have moved to states that discriminate against their marriages may take some work.
See the ways that the DOMA ruling has been implemented so far HERE.
Frequently Asked Questions
What Is DOMA?
DOMA was signed into law under President Bill Clinton on September 21, 1996. It mandates unequal treatment of legally married same-sex couples, selectively depriving them of the 1,138 protections and responsibilities that marriage triggers at the federal level. Under DOMA, married same-sex couples are denied a long list of important protections and responsibilities, including Social Security survivor benefits, immigration rights, family and medical leave, and the ability to pool resources as a family without unfair taxation.
In February 2011, the Obama Administration instructed the Department of Justice to stop defending DOMA in court and called for heightened scrutiny in federal lawsuits. In response to the Obama administration’s decision, the Bipartisan Legal Advisory Group (BLAG) convened to defend DOMA in place of the Department of Justice.
On June 26, the United States Supreme Court ruled in Windsor v. United States that Section 3 of DOMA is unconstitutional. The decision opened access for married same-sex couples living in states with the freedom to marry to over 1,100 protections that marriage provides. Now, work is underway to fully overturn DOMA and end federal marriage discrimination once and for all.
What impact will the June 2013 Supreme Court ruling immediately have for married same-sex couples?
All married couples, including same-sex couples, should be treated as married by the federal government no matter where they live. Same-sex couples who are married and living in one of the 12 states with the freedom to marry or the District of Columbia will be eligible for the federal protections and responsibilities that are extended to all other married couples. The ruling takes effect in 25 days from the decision day.
However, for legally married same-sex couples (and widows or widowers) who have moved to or now live in a state that discriminates against their marriages, access to federal marital protections may take some work. Freedom to Marry and other advocates are already looking at what steps administrative agencies can take to protect married same-sex couples. Attaining full protections for these families may require legislative action.
Can the Obama Administration take steps to properly protect married same-sex couples?
The Obama Administration has an opportunity to immediately move to correct much of the uncertainty that many married same-sex couples will face even in the absence of DOMA. Some of those programs have already begun implemented the DOMA ruling.
Under current law in the United States, the federal government defers to states in determining whether a couple's marriage is valid. Across all federal programs, there is not one single rule as to whether the validity of a marriage is determined by the couple's "place of celebration" (where the couple got married) or the couple's "place of domicile" (where the couple is living).
For same-sex couples, the "choice of law" standard can make the difference between respect for their marriage - and all of the federal protections and responsibilities that stem from their marriage - and no protection at all. The Obama Administration can and should take action to resolve many of these situations. Beyond a limited number of programs that require Congressional action - such as spousal and survivor benefits for Social Security - the Administration is unquestionably able to provide fair treatment for married same-sex couples.
Does the June 2013 Supreme Court ruling in Windsor mean that all states must respect the marriages of same-sex couples?
No. The ruling in Windsor does not tell states who they must allow to marry or how they must recognize marriages performed in other states. The decision says that the federal government can no longer deny married same-sex couples the protections of federal programs and policies that are afforded to all other married couples.
When should we expect relief for married same-sex couples?
For married same-sex couples living in one of the twelve states with the freedom to marry, relief should occur as soon as the Supreme Court's ruling becomes effect - 25 days after the ruling.
For couples living in states that do not respect their marriages, full relief will take time. Many changes may not happen with the simple stroke of a pen, and some require 'ruling making,' an established public process that could take up to a year.
Fair treatment in many federal programs, however, can be implemented fairly quickly by the Administration. And with DOMA's discriminatory ban on federal protections for married couples eliminated, the government should begin respecting the marriages of all their employees. Since the federal government is the largest employer in the country - civilians, military and alike - the enforcement of a non-discriminatory standard will have enormous benefit for thousands of families.
Before this landmark ruling by the nation's highest court, how many times had DOMA been ruled unconstitutional?
Before the historic Supreme Court ruling in June 2013, DOMA’s Section 3 had been ruled unconstitutional ten times. This includes: Gill v. Office of Personnel, in which DOMA was ruled unconstitutional at the district court level and by the U.S. Court of Appeals for the First Circuit; Massachusetts v. U.S. Department of Health and Human Services, in which DOMA was ruled unconstitutional at the district court level and by the U.S. Court of Appeals for the First Circuit; Windsor v. United States, in which DOMA was ruled unconstitutional at the district court level and by the U.S. Court of Appeals for the Second Circuit; In re Balas and Morales in the U.S. Bankruptcy Court for the Central District of California; and Golinski v. Office of Personnel Management, Pedersen v. Office of Personnel Management, and Dragovich v. U.S. Department of Treasury, in which DOMA was ruled unconstitutional at the district court level.
Blog Posts Related to DOMA
As families across the country work to file their federal taxes for the year, legally married same-sex couples are experiencing a new option: to file their taxes together, as a married couple. Now, a new video from the IRS offers guidance to married couples on how to file their taxes this year.
Today, Senator Jon Tester (D-MT) became the 44th United States Senator to co-sponsor the Respect for Marriage Act (S. 1236), the bill that would fully repeal the so-called Defense of Marriage Act, definitively ending federal marriage discrimination and ensuring certainty regardless of where a legally married same-sex couple lives.
This weekend, United States Attorney General Eric Holder announced that the Department of Justice would issue a memo to recognize marriages between same-sex couples - even in states without the freedom to marry - "to the greatest extent possible under the law."
Resources Related to DOMA
The Williams Institute reports on the various ways that the U.S. Supreme Court's review of the Defense of Marriage Act and California's Proposition 8 in March 2013 could have far ranging economic and regulatory implications for same-sex couples and their families.