The Defense of Marriage Act
The so-called Defense of Marriage Act (DOMA) was signed into law under President Bill Clinton on September 21, 1996. DOMA 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.
DOMA's Section 3 defines marriage as the legal union of one man and one woman, thus prohibiting the federal government from recognizing legal marriages between same-sex couples. Those couples are subsequently 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.
A number of court cases have found Section 3 to be unconstitutional. 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 – that is, a presumption that sexual orientation discrimination is unconstitutional. In response to the Obama administration’s decision, Speaker of the House John Boehner convened the Bipartisan Legal Advocacy Group (BLAG) to defend Section 3 of DOMA in place of the Department of Justice.
A number of ongoing cases across the country challenge the constitutionality of DOMA’s Section 3. The Supreme Court of the United States has agreed to hear one of these cases - Windsor v. United States - on March 27, 2013. Four other cases, in which judges have ruled that DOMA is unconstitutional, have also been submitted to the U.S. Supreme Court for potential review. In two others, DOMA has also been declared unconstitutional, while several others have been stayed pending other DOMA challenges. Read about each of these cases - as well as a number of other challenges to DOMA that have not yet been ruled on - HERE.
Frequently Asked Questions
Who is affected by DOMA?
All same-sex couples in the United States face discrimination because of the so-called Defense of Marriage Act. Couples who are legally married in states where same-sex couples can share in the freedom to marry are not protected at the federal level, meaning that they are not eligible for over 1,138+ protections and responsibilities afforded to different-sex couples. DOMA disrespects lawful marriages and disrespects states that have approved laws supporting fairness for all families. Some groups of same-sex couples face more specific roadblocks because of DOMA. For example, gay and lesbian service members and their families are disadvantaged because DOMA forces the U.S. military to discriminate against their marriages (Learn more about how DOMA hurts military families HERE). Binational same-sex couples are often forcibly separated as a result of DOMA, since gay and lesbian Americans may not sponsor same-sex partners for immigration purposes.
How many times has DOMA been ruled unconstitutional?
DOMA has been ruled unconstitutional ten times in seven different cases. 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.
How many times has DOMA been ruled unconstitutional by a Republican-appointed judge?
DOMA has been ruled unconstitutional by eight different individual judges or groups of judges. U.S. District Court Judges Joseph Tauro, Jeffrey White, Vanessa Bryant, Claudia Wilken, and Barbara Jones all issued opinions declaring DOMA unconstitutional; in addition, in the Appeals Court ruling of Gill and Massachusetts, Circuit Court Chief Judge Michael Boudin authored an opinion joined by Sandra Lynch and Juan R. Torruella, and in the Appeals Court ruling of Windsor, Circuit Court Chief Judge Dennis Jacobs authored an opinion joined by Christopher Droney and (in part) Chester Straub. Of these judges, six - Tauro, White, Boudin, Bryant, Torruella, and Jacobs - were appointed by Republican presidents (Richard Nixon, George W. Bush, George H.W. Bush, George W. Bush, Ronald Reagan, and George H.W. Bush, respectively).
Will the U.S. Supreme Court hear any of the DOMA legal challenges?
On Friday, December 7, the U.S. Supreme Court announced that it granted certiorari to Windsor v. United States. Oral arguments are scheduled for March 27, 2013, and a decision is expected in June 2013. Read all about marriage at the Supreme Court HERE.
Which other DOMA cases face potential consideration by the U.S. Supreme Court?
SCOTUS has already granted certiorari in Windsor v. United States (see above). Requests for certiorari have also been filed in four other DOMA challenges, meaning that institutions or individuals have requested that the U.S. Supreme Court review one or more of the DOMA cases. The four additional cases are: the consolidated Gill v. O.P.M. and Massachusetts v. Dept of HHS challenge, Golinski v. O.P.M., and Pedersen v. O.P.M. The Supreme Court has neither granted nor denied certiorari in the other four cases. Read about each of the cases HERE.
What are marriage advocates doing to overturn the DOMA?
Although DOMA will face review from the U.S. Supreme Court on March 27, we must continue working to create the climate for a ruling that would overturn the discriminatory law. We will continue to create this climate by winning more states and growing and diversifying majority support for the freedom to marry, per our three-track Roadmap to Victory. We must also pursue a variety of avenues toward DOMA repeal, including the Respect for Marriage Act, a bill in the U.S. House of Representatives and U.S. Senate that would overturn DOMA and return the federal government to its longstanding practice of honoring marriage without a "gay exception."
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This year, Tatjana Plitt, a photographer from Australia living in the United States, has been amplifying these stories of military families affected by DOMA through her "Gay Warriors" project, where she photographs couples and their families in their uniforms and shares their stories. Here, we caught up with Tatjana to ask her about her trip!
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Resources Related to
The full text of Freedom to Marry founder and President Evan Wolfson's thesis on 'Same-Sex Marriage and Morality: The Human Rights View of the Constitution' from April 1983.
How are we going to win the freedom to marry and end marriage discrimination nationwide? Decades ago, my movement colleagues and I set out to answer that question, and then to make good on the answer.
Analysis from Freedom to Marry and Third Way demonstrates that state legislators who support the freedom to marry win their bids for reelection.