Defense of Marriage Act

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The Defense of Marriage Act (DOMA), 28 U.S.C. 1738c, was passed by a Republican Congress and signed into law by Democratic President Bill Clinton.[1] It defends traditional marriage by enabling each state to refuse to recognize another state's grant of same-sex "marriages" and clarifies that the U.S. federal government does not recognize same-sex "marriages" at all, even if recognized by one of the states.

This law has two effects:

  1. No state is required to recognize a same-sex "marriage" performed in another state under the Full Faith and Credit Clause of the Constitution.
  2. The federal government must not recognize any same-sex "marriages".

At the time, it was thought that the first effect was most important, and it appears first in the law. Over ten years later, the second effect has emerged as most important, and in early 2009 a lawsuit was filed in Massachusetts to force the federal government to recognize same-sex "marriages" performed there.

State Marriage Laws

30 out of 50 states have constitutional provisions defining and limiting marriage as between a man and a woman.[2] Traditional marriage has been affirmed in all 31 states in which it was put to a popular vote.[3] The states lacking protection of marriage in their constitutions are the 13 northeastern states and territory (D.C.) beginning with West Virginia (but not including Virginia), plus North Carolina on the East Coast; in the Midwest the states of Minnesota, Iowa, Illinois and Indiana, and in the West the states of Colorado, New Mexico and Washington. As of August 3, 2010, 7 states had judicially declared or legislatively enacted same-sex "marriage" laws: Massachusetts, California, Iowa, Connecticut, Vermont, Maine and New Hampshire. Proposition 8 modified California's constitution in 2008 to protect the sanctity of marriage, and Maine Question 1 stopped the homosexual agenda again in 2009.[3]

Of the roughly 14 states that lack a constitutional traditional marriage provision, seven have "state DOMAs," which is state legislation defining marriage in the traditional way. States or territories that lack constitutional protection for marriage or a state DOMA include New Jersey, Delaware, Rhode Island, D.C., Colorado and New Mexico.

Text and Codification of Law

The text of this law, which was passed in 1996 and signed into law by President Bill Clinton, is simple:

An Act To define and protect the institution of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Defense of Marriage Act'.
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
`Sec. 1738C. Certain acts, records, and proceedings and the effect thereof
`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.'.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
`1738C. Certain acts, records, and proceedings and the effect thereof.'.
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
`Sec. 7. Definition of `marriage' and `spouse'
`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.'.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
`7. Definition of `marriage' and `spouse'.'.

This law was then codified in two different sections of Titles 1 and 28 of the United States Code:

1 U.S.C. § 7. Definition of "marriage" and "spouse"
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.
28 U.S.C. § 1738C. Certain acts, records, and proceedings and the effect thereof
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.

Further reading

  • Strasser, Mark. "Ex Post Facto Laws, Bills of Attainder, and the Definition of Punishment: On DOMA, the Hawaii Amendment, and Federal Constitutional Constraints," 48 Syracuse L. Rev. 227 (1998) outline

References

  1. The law passed by overwhelming supermajorities: 342-67 in the House, and 85-14 in the Senate.
  2. http://www.domawatch.com/stateissues/index.html
  3. 3.0 3.1 The Guardian, "Maine voters reject gay-marriage law"