Defense of Marriage Act
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The Defense of Marriage Act, or DOMA, Pub. L. No. 104-199, 100 Stat. 2419 (Sept. 21, 1996), codified at #redirect [[Template:UnitedStatesCode]] and #redirect [[Template:UnitedStatesCode]], is a federal law of the United States passed by Congress and signed by President Bill Clinton on September 21, 1996. The law provides:
- First, it allows each state (or similar political division in the United States) to deny Constitutional marital rights between persons of the same sex which have been recognized in another state.
- Second, for purposes of federal law, it defines marriage as "a legal union of one man and one woman as husband and wife" and by stating that spouse "refers only to a person of the opposite sex who is a husband or a wife."
Text
The following excerpts are the main provisions of the Act:
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.
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.”
Constitutionality
The Full Faith and Credit Clause of the United States Constitution obligates states to give "Full Faith and Credit ... to the public Acts, Records, and judicial Proceedings of every other State." The Effects Clause (Art IV, § 1) grants Congress the authority to "prescribe...the Effect" which the laws of one state have in another.Some have argued that DOMA is unconstitutional and would not survive judicial scrutiny under the Supreme Court of the United States because it goes beyond the powers granted to Congress by the effects clause. Others believe that DOMA is constitutional.
DOMA may be largely unnecessary, regardless of whether it is constitutional. The Supreme Court has long recognized a "public policy exception" to the Full Faith and Credit clause. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. The public policy exception has been applied in cases of marriage such as polygamy, miscegenation or consanguinity.
DOMA might still have an effect with regard to judgments based on same-sex marriages. For example, suppose a Massachusetts resident is hit by a driver visiting from Maine. The Massachusetts man's husband successfully sues the Maine driver for loss of consortium in Massachusetts and is awarded money damages. If the husband tries to collect his money in Maine, can Maine refuse to enforce the Massachusetts judgment? Federal courts have held that the "public policy exception" to full faith and credit does not apply to judgments. Thus, a state must normally enforce a final judgment even if the judgment violates the state's public policy. Legal experts disagree on whether the "effects" clause allows Congress to grant states the right to ignore foreign judgments.
Despite all such arguments, no attempt to challenge the law has even reached the Supreme Court, and all lower court rulings have upheld the constitutionality of the law.
Constitutional objections to DOMA might be rendered moot by amendment of the Constitution or by stripping courts of jurisdiction to rule on the case. The strongest version of a Federal Marriage Amendment would permanently prohibit both the federal and state governments from recognizing same-sex unions. Another alternative, endorsed by the 2004 Republican Party political platform, is for Congress to pass a law protecting DOMA from judicial scrutiny. Some have argued that this itself would be unconstitutional, but the U.S. Constitution gives the Congress the power to determine what areas of public policy are within the courts purview.
DOMA and state legislation
Opponents of same-sex marriage assert that the issue should be decided democratically through the legislative process, rather than through the judicial process. Under this view, it is proper to use the DOMA and/or the "public policy exception" to the Full Faith and Credit clause to allow states to reject another state's recognition of same-sex marriage, because the will of the voters would be defeated if all states were required to recognize same-sex marriages contracted in any state that allows them, or if such marriages were recognized by the federal courts as a fundamental right.Gay rights advocates, conversely, feel that the democratic process is denying them a fundamental right. Since the system of checks and balances in the United States leaves it to the judiciary to protect the fundamental rights of minority groups against the tyranny of the majority, advocates believe that the judiciary should strike down gender restrictive marriage laws in the same way they struck down racially restrictive marriage laws. Under this view, there is no objection to the use of full faith and credit as a tactic to force the issue.
Both supporters and opponents of same-sex marriage accuse the other side of trying to "legislate morality."
Legal history
In the 1993 case Baehr v Lewin, The Hawaii State Supreme Court ruled that the state must show a compelling interest in prohibiting same-sex marriage. This prompted concern among opponents of same-sex marriage that the state might legalize it, and that eventually other states would recognize same-sex marriages performed in Hawaii. The Defense of Marriage Act is designed specifically to "quarantine" same-sex marriage and prevent states from being required to recognize the marriage of same-sex couples in other states.The Defense of Marriage Act was signed into law by President Bill Clinton on September 21, 1996, after moving through a legislative fast track and overwhelming approval in both houses of the Republican-controlled U.S. Congress. Its Congressional sponsors stated, "[T]he bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex." [link]
Critics of DOMA argue that the law is unconstitutional on several grounds including:
- Congress over-reached its authority under the Full Faith and Credit Clause
- the law illegally discriminates and violates the Equal Protection Clause
- the law violates the fundamental right to marriage (including same-sex marriage) under the due process clause
The city of San Francisco began issuing marriage licenses to same-sex couples in February 2004, but stopped doing so soon thereafter, in compliance with a preliminary injunction issued by the Supreme Court of California which declared the licences invalid later that year.
Some states have proactively, by legislation or referendum, determined that they will not recognize same-sex marriages.
In response to the growing number of legal and political challenges, some proponents of DOMA have proposed the Federal Marriage Amendment to the U.S. Constitution, the strongest version of which would override any possible application of the Full Faith and Credit clause to same-sex partnerships, marriages or civil unions in other states. It would also prevent any state from legalizing same-sex marriages entered into within the state.
Although Clinton signed the Defense of Marriage Act into law during his re-election campaign in 1996 and opposed same-sex marriage, he did not mention the law (or the controversy surrounding it) in his 2004 memoir, My Life.
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." [link]
See also
External links
- [Summary and analysis] at Lectric Law
- [State Defense of Marriage Acts] — state-by-state summary
- [House roll call vote]
- [Senate roll call vote]
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