"Defense of marriage acts" (DOMA)
Passage of the federal DOMA law in 1996
During 1996, a "Defense of Marriage Act (DOMA)" was written by Representative Steve
Largent (R-OK). It defines the term marriage within Federal law as meaning "only
a legal union between one man and one woman as husband and wife." The act also
includes a clause that is supposed to excuse each state from having to follow the "full faith and credit"
clause of the US constitution; this would allow a state to refuse to recognize a marriage
made in another state if the spouses were of the same gender. A similar bill, S. 1740, was
introduced to the Senate on 1996-MAY-8 by Senator Don Nickles (R-OK).
The bill was triggered by a decision of the Hawaiian Supreme Court that led
to a legalization of same-sex marriage (SSM) in that state. It lasted such a short
interval that no same-sex couples were able to get married. Still, many members of Congress
wanted to prevent same-sex marriage from proceeding anywhere in the U.S. in the future.
It is ironic that one of the main supporters of the bill, Senator Phil Gramm (R-TX),
would have been prohibited from marrying his wife a few decades previously by almost identical
legislation. His wife is partly of Korean ancestry; Phil Gramm is Caucasian. As described
elsewhere in this web site, inter-racial marriages were prohibited in many states of the US as late as 1967
when all such laws were declared unconstitutional by the U.S. Supreme Court in
the ironically titled case: "Loving vs. Virginia."
Senator Jesse Helms (R-NC) warned that:
"the homosexual lobby [was
trying to] ... "force their agenda upon the vast majority of Americans [and
was] ... willing to tear apart America's moral fabric."
This is factually
incorrect. The major gay and lesbian organizations had originally felt that the right to enter into
same-sex marriages (SSMs) should not be pursued until after other rights (e.g. protection in employment, protection in accommodation,
protection from hate crimes, etc) had first been obtained. The Hawai'ian group fought
the matter through the courts did so with little financial support from mainland
homosexual organizations. They ended up deeply in debt.
The federal DOMA act is a unique intrusion by the federal government into an area that had always
been under the control of the individual states. The Anchorage News 1 commented:
"... scholars also questioned the federal government's authority under the
Constitution to pick and choose which state laws must be honored by other states. If
Congress can nullify one state's marriage laws, the scholars pointed out, it's presumably
free to void a state's tort laws, or product liability laws, or any other laws with
interstate implications. It's not clear whether any law in any state would be safe from
this kind of congressional nullification."
DOMA could also legalize bigamy in the United States. A bisexual woman could go to
a state in which same-sex marriage was legal and
marry another woman. She could move to another state, where she would be considered
single, and be free to marry a man.
Congressman John Lewis (D, GA) delivered a
moving speech in the House in opposition to DOMA.
The bill passed the House with an overwhelming majority (342 to 67) in 1996-JUL. It passed
the Senate 85 to 14 on 1996-SEP-10. It was signed into law by President Clinton
1996-SEP. It he had not signed it, his veto would almost certainly have been overturned by
Many, perhaps most, constitutional experts believe that the law could not
survive a court challenge before the U.S. Supreme Court, unless the court
first becomes packed with more strict constructionists. Before a court case can
be initiated, gays and lesbians had to achieve equal marriage rights in
at least one state. This first happened in the state of Massachusetts where the Supreme Judicial Court
ordered that marriage
licenses be sold to same-sex couples starting in 2004-MAY-20. It has since
spread to the District of Columbia and a growing number of other states.
A couple married
in Massachusetts in late 2004-MAY, returned to their home in Minnesota, and launched a lawsuit
with the U.S. District Court to force the IRS to change their tax return to
reflect their new status: "married, filing jointly." This made no
economic sense, because if were are recognized as married, they would have to pay
the "marriage penalty" -- income taxes. However,
marriage was sufficiently important to them that it overruled the economic
disadvantage. They and other couples were unsuccessful. 2
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- A listing of activity on a state by state basis is available at: http://www.ftm.org/
It does not seem to have been updated recently.
- Terry Phillips, "Same-sex couples take on the IRS," Family News
in Focus, 2004-MAY-26, at:
Copyright © 1995 to 2011 by Ontario
Consultants on Religious Tolerance
Originally written: 1995-SEP-11
Latest update: 2012-NOV-27
Author: B.A. Robinson