Defense of Marriage Act
Encyclopedia
The Defense of Marriage Act (DOMA) is a United States federal law
whereby the federal government
defines marriage
as a legal union between one man and one woman. Under the law, no U.S. state
(or other political subdivision
) may be required to recognize as a marriage a same-sex relationship
considered a marriage in another state. The law passed both houses of Congress by large majorities and was signed into law by President
Bill Clinton
on September 21, 1996.
The law, specifically Section 3, codifies a lack of recognition of same-sex marriage
for all federal purposes, which include family insurance benefits for employees of the government, survivors' benefits from Social Security
, and joint tax filings. This section has been found unconstitutional in two Massachusetts
court cases and a California
bankruptcy court case. However, the court rulings are under appeal. Parts of the act have also been deemed unconstitutional by the Barack Obama
administration, which announced in 2011 that it would enforce DOMA, but would not defend it in court.
or judicial interpretation
of either the state or federal constitution. Opponents of such recognition feared—and many proponents hoped—that the other states would then be required to recognize such marriages under the Full Faith and Credit Clause
of the United States Constitution
.
Section 3 of the law—the part that defines marriage for federal purposes as the union of a man and a woman—was ruled unconstitutional by a federal district court judge in July 2010. This decision was appealed in October 2010. On February 23, 2011, Attorney General
Eric Holder
announced that the Justice Department
would cease legal defense of the Act's Section 3 at the direction of President Barack Obama
, who had reached a conclusion that Section 3 was unconstitutional. However, Congress may defend the law in court in place of the administration, and on March 4, 2011, Speaker of the House
John Boehner
announced he was taking steps to defend Section 3 in place of the Department of Justice. Additionally, the administration intends to enforce the law "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."
Section 2. Powers reserved to the states
Section 3. Definition of marriage
reaffirmed its policy of denying such applications. With respect to obtaining a visitor's visa, Bureau rules treat bi-national same-sex spouses the same as bi-national opposite-sex unmarried partners under the classification "cohabiting partners".
Tim Coco and Genesio J. Oliveira, a same-sex couple married in Massachusetts in 2005, successfully challenged this policy and developed a model since followed by other immigration activists. The U.S. refused to recognize their marriage and in 2007 Oliveira, a Brazilian national, accepted "voluntary departure" and returned to Brazil. They conducted a national press campaign that won the attention of Senator John F. Kerry, who first lobbied Attorney General Eric H. Holder Jr. without success. He then gained the support of United States Department of Homeland Security
Secretary Janet Napolitano
who granted Oliveira humanitarian parole
, enabling the couple to reunite in the U.S. in June 2010. Humanitarian parole is granted on a case-by-case basis at the Secretary's discretion.
the Supreme Court of Hawaii ruled that the state must show a compelling interest in prohibiting same-sex marriage. This prompted concern among opponents of same-sex marriage that same-sex marriage might become legal in Hawaii and that other states would recognize those marriages. The Defense of Marriage Act was intended to free states from any obligation to recognize the marriage of same-sex couples in other states.
Georgia Representative Bob Barr
, then a Republican, authored the Defense of Marriage Act and introduced it on May 7, 1996. 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." The legislative history
of the bill asserts authority to enact the law under Article IV Sec. 1, which grants Congress power to determine "the effect" of the full faith and credit each state must grant to other states' acts. Proponents made clear their purpose to normalize heterosexual marriage on a federal level, while still allowing each state to decide individually whether to recognize same-sex unions
from other states.
The 1996 Republican Party platform endorsed DOMA, referencing only Section 2 of the Act: "We reject the distortion of [anti-discrimination] laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions." The Democratic Party platform that year did not mention DOMA or marriage.
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." He did not mention the issue in his 2004 autobiography
. Over time, Clinton's personal views on same-sex marriage shifted. In July 2009 he said "I personally support people doing what they want to do. I think it's wrong for someone to stop someone else from doing that [gay marriage]." Clinton added that he personally supports same-sex marriage but does not believe it is a "federal question", stating, "I think all these states that do it should do it."
The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress, passing by a vote of 85–14 in the Senate
and a vote of 342–67 in the House of Representatives
. It was signed into law by President
Bill Clinton
on September 21, 1996.
Since the enactment of DOMA several states have issued licenses for same-sex marriages: Iowa
, California
, Connecticut
, Vermont, New Hampshire, Massachusetts
, the District of Columbia, and New York
.
In 2008, Congressman Barr apologized for sponsoring DOMA and said he thought it should be repealed, saying it violates the principles of federalism.
President Barack Obama
's political platform included full repeal of DOMA. On June 12, 2009, the Department of Justice issued a brief defending the constitutionality of DOMA in the case of Smelt v. United States of America in line with its longstanding practice of defending all federal laws challenged in court. This action drew scorn from some organizations in favor of same-sex marriage, such as the Human Rights Campaign
and the Empowering Spirits Foundation
, with a heavy focus on the brief's specific arguments. On June 15, 2009, Human Rights Campaign
President Joe Solmonese
sent a four page letter to President Barack Obama
in response to the Department of Justice brief, in which he laid out the case of LGBT
people as equal human beings and urged, "We call on you to put your principles into action and send legislation repealing DOMA to Congress." On February 23, 2011, Attorney General
Eric Holder
announced that the Justice Department
would cease legal defense of the Act's Section 3 at the direction of President Barack Obama
, who had concluded that Section 3 was unconstitutional. In a separate letter to House Speaker Boehner, Holder noted that Congress will still have an opportunity to participate in these lawsuits in the Department of Justice
's absence.
of New York
, Tammy Baldwin
of Wisconsin
, and Jared Polis
of Colorado
, introduced legislation to repeal DOMA called the Respect for Marriage Act
. The bill had 91 original co-sponsors in the House of Representatives. However, Congressman Barney Frank
and John Berry
, head of the Office of Personnel Management, did not support that effort, stating that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management
filed by Gay & Lesbian Advocates & Defenders.
On February 23, 2011, following Attorney General Eric Holder
's announcement that the Obama Administration would no longer defend DOMA Section 3 in court, Senator Dianne Feinstein
announced her intent to introduce legislation in the Senate Judiciary Committee to repeal DOMA. On March 16, 2011, the Respect for Marriage Act was re-introduced in both houses during the 112th Congress. The House version was introduced by Nadler, and the Senate version by Feinstein. The Senate Judiciary Committee voted 10-8 in favor of advancing the bill to the Senate floor, where it would require 60 votes in order to end a potential fillibuster.
Section 2 of DOMA explicitly addresses the constitutional requirement expressed in the Full Faith and Credit Clause
in Article IV Section 1 of the United States Constitution, quoting its language directly. That clause establishes that the states have certain reciprocal obligations to one another, specifically to recognize each other's "public Acts, Records, and judicial Proceedings." That same section of the Constitution gives Congress the authority to legislate on the question of those obligations. Section 2 of DOMA excludes same-sex marriages from the state "acts" that any other state needs to recognize.
Section 3 of DOMA defining "marriage" and "spouse" for federal purposes raises a more extensive variety of constitutional issues. On February 23, 2011, Attorney General Eric Holder and President Obama announced their conclusion that "a more heightened standard of scrutiny" is necessary for sexuality-based classifications and consequently that DOMA Section 3 is unconstitutional.
Judge Stephen Reinhardt
declared DOMA unconstitutional in an employment dispute resolution tribunal, where the federal government refused to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson. As an employee of the federal judiciary, Levenson is prohibited from suing his employer in federal court. Rather, employment disputes are handled at employment dispute resolution tribunals in which a federal judge hears the dispute in their capacity as a dispute resolution official.
ruled in 2009 that she was entitled to spousal health benefits, but the Office of Personnel Management
announced that it would not comply with the ruling. In January 2010, Lambda Legal
filed suit against the federal government in the U.S. District Court for the Northern District of California, in accordance with the terms of the Employment Dispute Resolution Plan. On March 17, 2011, U.S. District Judge Jeffrey S. White dismissed the suit on procedural grounds, but invited the plaintiffs to amend their suit to argue the unconstitutionality of DOMA Section 3, which they did on April 14. On May 3, 2011, on behalf of the Bipartisan Legal Advisory Group
(BLAG), former United States Solicitor General
Paul Clement
filed a motion to dismiss, raising arguments previously avoided by the Department of Justice that DOMA's definition of marriage is valid "because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children." On July 1, 2011, the DOJ filed a brief in support of Golinski's suit, in which it detailed for the first time its case for heightened scrutiny based on "a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities" and its arguments that DOMA Section 3 fails to meet that standard.
A September 20, 2011 letter from New York archbishop Timothy Dolan, which included a 3-page analysis by the U.S. Conference of Catholic Bishops, cited the brief as evidence that the DOJ "has shifted ... to actively attacking DOMA's constitutionality". Dolan predicted current federal actions would "precipitate a national conflict between church and state of enormous proportions and to the detriment of both institutions."
in federal court for refusing to issue them a marriage license. The district court ruled that the couple did not have standing
to challenge Section 2 of DOMA and rejected their challenge to the constitutionality of Section 3. On May 5, 2006, the United States Court of Appeals for the Ninth Circuit
dismissed the suit, and on October 10 the United States Supreme Court
refused to consider the couple's appeal. On March 9, 2009, the same couple, having legally married in California, filed another lawsuit, challenging the constitutionality of DOMA and California's Proposition 8
. District Judge David O. Carter
dismissed the case on August 24, because the couple had not applied for and been denied any federal benefit and therefore lacked "an injury in fact."
challenge, Gill v. Office of Personnel Management
based on the Equal Protection Clause and the federal government's heretofore consistent deference to each state's definition of marriage. The case questioned only the DOMA provision that the federal government defines marriage as the union of a man and a woman. On May 6, 2010, Judge Joseph L. Tauro
heard arguments in the U.S. District Court in Boston.
On July 8, 2009, Massachusetts Attorney General Martha Coakley
filed a suit, Massachusetts v. United States Department of Health and Human Services
, challenging the constitutionality of DOMA. The suit claims that Congress "overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people." Judge Tauro heard arguments in Massachusetts on May 26, 2010.
On July 8, 2010, Judge Tauro issued his rulings in both Gill and Massachusetts, granting summary judgment
for the plaintiffs in both cases. He found in Gill that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution
. In Massachusetts he held that the same section of DOMA violates the Tenth Amendment
and falls outside Congress' authority under the Spending Clause
of the Constitution. Those decisions were automatically stayed for two weeks by federal court rules and were stayed further after the Department of Justice entered an appeal on October 12, 2010.
On November 3, 2011, 133 Democrats from the US House of Representatives filed an amicus brief in support of the plaintiffs in Gill and Massachusetts, asserting their belief that §3 of DOMA is unconstitutional. Included among the members of Congress signing the amicus curiae were 14 members who had voted for the bill’s passage in 1996.Seventy major employers have also filed an amicus brief supporting getting rid of DOMA.
, where no precedent exists for the standard of review to be followed in sexual-orientation discrimination cases.
GLAD filed Pedersen v. Office of Personnel Management
in District Court in Connecticut making on behalf of same-sex couples in Connecticut, Vermont, and New Hampshire the same arguments it made in Gill.
The American Civil Liberties Union
and the law firm Paul, Weiss, Rifkind, Wharton & Garrison
filed Windsor v. United States
in New York on behalf of a surviving same-sex spouse whose inheritance from her deceased spouse had been subject to federal taxation as if they were unmarried. New York Attorney General Eric Schneiderman
filed a brief supporting Windsor's claim on July 26, 2011.
On June 13, 2011, 20 of the 25 judges of the U.S. Bankruptcy Court for the Central District of California signed an opinion in the case in re Balas and Morales that found that a same-sex married couple filing for bankruptcy "have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled." The decision found DOMA Section 3 unconstitutional and dismissed the BLAG's objections to the joint filing. It said:
A spokesman for House Speaker Boehner said the Bipartisan Legal Advisory Group (BLAG) would not appeal the ruling, though the United States Trustee for California later filed a motion for leave to appeal.
On July 7, 2011, the DOJ announced that after consultation with the BLAG it will no longer raise objections to "bankruptcy petitions filed jointly by same-sex couples who are married under state law".
rejected a challenge against DOMA, citing Adams v. Howerton
as binding precedent. The plaintiffs there challenged the denial of immediate relative status to the same-sex spouse of an American citizen.
that it will "cease to defend" Gill and Massachusetts as well. On July 1, 2011, the DOJ, with a filing in Golinski, intervened for the first time on behalf of a plaintiff seeking to have DOMA Section 3 ruled unconstitutional, arguing that laws that use sexual orientation as a classification need to pass the court's strict scrutiny
standard of review. The DOJ made similar arguments in a filing in Gill on July 7.
On April 18, 2011, House leaders announced they had picked former United States Solicitor General Paul Clement to represent the BLAG, and Clement, without opposition from other parties to the case, filed a motion to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA. On April 25, 2011, King & Spalding
, the law firm
through which Clement was handling the case, announced it was dropping the case. On the same day, Clement resigned from King & Spalding in protest and joined Bancroft PLLC
, which took on the case. The House's initial contract with Clement capped legal fees at $500,000,, but on September 30, a revised contract raised the cap to $1.5 million. A spokesman for Boehner explained that the BLAG would not appeal in all cases, citing bankruptcy cases that are "unlikely to provide the path to the Supreme Court....[E]ffectively defending [DOMA] does not require the House to intervene in every case, especially when doing so would be prohibitively expensive."
Only Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia allow marriages between persons of the same sex. The California Supreme Court legalized same-sex marriage on June 16, 2008, but on November 4, 2008, voters passed a constitutional amendment to restrict marriage to members of the opposite sex. The amendment has since been declared unconstitutional in federal court, but same-sex marriages have not resumed in California because the case is still being appealed.
New Mexico and Maryland recognize such marriages from other jurisdictions. Other states recognize such a marriage as a non-marriage relationship such as a civil union or domestic partnership (California, Hawaii, Illinois, Nevada and New Jersey).
Some states recognize civil unions to represent same-sex relationships, considering them equivalent to marriage. Other states (including Nevada) have domestic partnerships in place to grant same-sex relationships some of the benefits the state bestows on married couples. However, there are procedural differences such as differing age limitations (in many states, the legal age to marry is 16, while the legal age to enter into a domestic partnership is 18), residential requirements (married individuals are not required to live in the same residence with their spouse, while domestic partners are required to share a residence, although in states such as Nevada such co-residency may be part-time).
A majority of the states, including those that have some benefits for same-sex relationships, have restricted recognition of marriage to unions of one man and one woman in state law, have some law defining marriage as such, or have an amendment to their state constitution to that effect. As of April 2009, 29 states have enacted constitutional amendments defining marriage as the union of a man and a woman, and another 13 states have statutory bans, including Maine, which approved a same-sex marriage law that was repealed by referendum in the United States general elections, 2009.
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
whereby the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
defines marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
as a legal union between one man and one woman. Under the law, no U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
(or other political subdivision
Political divisions of the United States
The political units and divisions of the United States include:*The 50 states are subdivided into counties . The counties may be further subdivided into townships, or towns in New York and New England...
) may be required to recognize as a marriage a same-sex relationship
Same-sex relationship
A same-sex relationship is a relationship between two persons of the same sex and can take many forms, from romantic and sexual, to non-romantic close relationships. The term is mainly associated with gay and lesbian people...
considered a marriage in another state. The law passed both houses of Congress by large majorities and was signed into law by President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
on September 21, 1996.
The law, specifically Section 3, codifies a lack of recognition of same-sex marriage
Same-sex marriage in the United States
The federal government does not recognize same-sex marriage in the United States, but such marriages are recognized by some individual states. The lack of federal recognition was codified in 1996 by the Defense of Marriage Act, before Massachusetts became the first state to grant marriage licenses...
for all federal purposes, which include family insurance benefits for employees of the government, survivors' benefits from Social Security
Social Security (United States)
In the United States, Social Security refers to the federal Old-Age, Survivors, and Disability Insurance program.The original Social Security Act and the current version of the Act, as amended encompass several social welfare and social insurance programs...
, and joint tax filings. This section has been found unconstitutional in two Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
court cases and a California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
bankruptcy court case. However, the court rulings are under appeal. Parts of the act have also been deemed unconstitutional by the Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
administration, which announced in 2011 that it would enforce DOMA, but would not defend it in court.
Social history of the law
At the time of passage, it was expected that Hawaii (and possibly other states) would soon legalize same-sex marriage, whether by legislationLegislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
or judicial interpretation
Judicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
of either the state or federal constitution. Opponents of such recognition feared—and many proponents hoped—that the other states would then be required to recognize such marriages under the Full Faith and Credit Clause
Full Faith and Credit Clause
The Full Faith and Credit Clause is the familiar name used to refer to Article IV, Section 1 of the United States Constitution, which addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to...
of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
.
Section 3 of the law—the part that defines marriage for federal purposes as the union of a man and a woman—was ruled unconstitutional by a federal district court judge in July 2010. This decision was appealed in October 2010. On February 23, 2011, Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
Eric Holder
Eric Holder
Eric Himpton Holder, Jr. is the 82nd and current Attorney General of the United States and the first African American to hold the position, serving under President Barack Obama....
announced that the Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
would cease legal defense of the Act's Section 3 at the direction of President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
, who had reached a conclusion that Section 3 was unconstitutional. However, Congress may defend the law in court in place of the administration, and on March 4, 2011, Speaker of the House
Speaker of the United States House of Representatives
The Speaker of the United States House of Representatives, or Speaker of the House, is the presiding officer of the United States House of Representatives...
John Boehner
John Boehner
John Andrew Boehner is the 61st and current Speaker of the United States House of Representatives. A member of the Republican Party, he is the U.S. Representative from , serving since 1991...
announced he was taking steps to defend Section 3 in place of the Department of Justice. Additionally, the administration intends to enforce the law "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."
Text
The following excerpts are the main provisions of the Act:Section 2. 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.
Section 3. Definition of marriage
- 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.
Effects
DOMA's Section 3 prevents the federal government from recognizing the validity of same-sex marriages. The General Accounting Office issued a report in 1997 identifying "1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor". In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003.Immigration
Bi-national same-sex couples are kept from legally living in the United States by DOMA's Section 3, which prevents one spouse from sponsoring the other for a Green Card. Following some uncertainty after the Obama Administration determining Section 3 to be unconstitutional, the Bureau of Citizenship and Immigration ServicesUnited States Citizenship and Immigration Services
United States Citizenship and Immigration Services is a component of the United States Department of Homeland Security . It performs many administrative functions formerly carried out by the legacy United States Immigration and Naturalization Service , which was part of the Department of Justice...
reaffirmed its policy of denying such applications. With respect to obtaining a visitor's visa, Bureau rules treat bi-national same-sex spouses the same as bi-national opposite-sex unmarried partners under the classification "cohabiting partners".
Tim Coco and Genesio J. Oliveira, a same-sex couple married in Massachusetts in 2005, successfully challenged this policy and developed a model since followed by other immigration activists. The U.S. refused to recognize their marriage and in 2007 Oliveira, a Brazilian national, accepted "voluntary departure" and returned to Brazil. They conducted a national press campaign that won the attention of Senator John F. Kerry, who first lobbied Attorney General Eric H. Holder Jr. without success. He then gained the support of United States Department of Homeland Security
United States Department of Homeland Security
The United States Department of Homeland Security is a cabinet department of the United States federal government, created in response to the September 11 attacks, and with the primary responsibilities of protecting the territory of the United States and protectorates from and responding to...
Secretary Janet Napolitano
Janet Napolitano
Janet Napolitano is the third and current United States Secretary of Homeland Security, serving in the administration of President Barack Obama. She is the fourth person to hold the position, which was created after the 9/11 terrorist attacks. A member of the Democratic Party, she was the 21st...
who granted Oliveira humanitarian parole
Parole (United States immigration)
In United States immigration law, the term parole has three different meanings.A person who does not meet the technical requirements for a visa may be allowed to enter the U.S. on humanitarian parole. Humanitarian parole is granted on a case-by-case basis at the discretion of the Secretary of the U.S...
, enabling the couple to reunite in the U.S. in June 2010. Humanitarian parole is granted on a case-by-case basis at the Secretary's discretion.
Enactment
In the 1993 case Baehr v. MiikeBaehr v. Miike
Baehr v. Miike is a 1993 Supreme Court of Hawaii case in which three same-sex couples argued that the state's prohibition of same-sex marriage violated the state constitution...
the Supreme Court of Hawaii ruled that the state must show a compelling interest in prohibiting same-sex marriage. This prompted concern among opponents of same-sex marriage that same-sex marriage might become legal in Hawaii and that other states would recognize those marriages. The Defense of Marriage Act was intended to free states from any obligation to recognize the marriage of same-sex couples in other states.
Georgia Representative Bob Barr
Bob Barr
Robert Laurence "Bob" Barr, Jr. is a former federal prosecutorand a former member of the United States House of Representatives. He represented Georgia's 7th congressional district as a Republican from 1995 to 2003. Barr attained national prominence as one of the leaders of the impeachment of...
, then a Republican, authored the Defense of Marriage Act and introduced it on May 7, 1996. 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." The legislative history
Legislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken...
of the bill asserts authority to enact the law under Article IV Sec. 1, which grants Congress power to determine "the effect" of the full faith and credit each state must grant to other states' acts. Proponents made clear their purpose to normalize heterosexual marriage on a federal level, while still allowing each state to decide individually whether to recognize same-sex unions
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
from other states.
The 1996 Republican Party platform endorsed DOMA, referencing only Section 2 of the Act: "We reject the distortion of [anti-discrimination] laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions." The Democratic Party platform that year did not mention DOMA or marriage.
In a June 1996 interview in the gay and lesbian magazine The Advocate
The Advocate
The Advocate is an American LGBT-interest magazine, printed monthly and available by subscription. The Advocate brand also includes a web site. Both magazine and web site have an editorial focus on news, politics, opinion, and arts and entertainment of interest to LGBT people...
, 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." He did not mention the issue in his 2004 autobiography
My Life (Bill Clinton autobiography)
My Life is a 2004 autobiography written by former President of the United States Bill Clinton, who left office on January 20, 2001. It was released on June 22, 2004. The book was published by the Knopf Publishing Group; the book sold in excess of 2,250,000 copies...
. Over time, Clinton's personal views on same-sex marriage shifted. In July 2009 he said "I personally support people doing what they want to do. I think it's wrong for someone to stop someone else from doing that [gay marriage]." Clinton added that he personally supports same-sex marriage but does not believe it is a "federal question", stating, "I think all these states that do it should do it."
The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress, passing by a vote of 85–14 in the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
and a vote of 342–67 in the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
. It was signed into law by President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
on September 21, 1996.
Since the enactment of DOMA several states have issued licenses for same-sex marriages: Iowa
Same-sex marriage in Iowa
Same-sex marriage in the U.S. state of Iowa became legal on April 3, 2009.Iowa's first dealings with same-sex marriage came in 1998, after recent court cases on same-sex unions, starting in Hawaii, found that denying the right to marry to same-sex couples was incompatible with the Equal Protection...
, California
Same-sex marriage in California
The status of same-sex marriage in California is unique among the 50 U.S. states, in that the state formerly granted marriage licenses to same-sex couples, but has discontinued doing so...
, Connecticut
Same-sex marriage in Connecticut
Connecticut joined Massachusetts as one of two states in the U.S. to perform marriages of same-sex couples on November 12, 2008. Connecticut was the third state to do so, but only the second where the decision was not repealed.-Civil union:...
, Vermont, New Hampshire, Massachusetts
Same-sex marriage in Massachusetts
Same-sex marriage in the U.S. state of Massachusetts began on May 17, 2004, as a result of the Supreme Judicial Court of Massachusetts ruling in Goodridge v. Department of Public Health that it was unconstitutional under the Massachusetts constitution to allow only heterosexual couples to marry...
, the District of Columbia, and New York
Same-sex marriage in New York
Same-sex marriage in the U.S. state of New York became legal on July 24, 2011, under the Marriage Equality Act, which was passed on June 24, 2011, by the New York State Legislature and signed by Governor Andrew Cuomo on the same day...
.
Later politics
The 2000 Republican Party platform endorsed DOMA in general terms but introduced a concern about possible judicial action: "We support the traditional definition of 'marriage' as the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages. The Democratic Party platform that year did not mention DOMA or marriage in this context.In 2008, Congressman Barr apologized for sponsoring DOMA and said he thought it should be repealed, saying it violates the principles of federalism.
President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
's political platform included full repeal of DOMA. On June 12, 2009, the Department of Justice issued a brief defending the constitutionality of DOMA in the case of Smelt v. United States of America in line with its longstanding practice of defending all federal laws challenged in court. This action drew scorn from some organizations in favor of same-sex marriage, such as the Human Rights Campaign
Human Rights Campaign
The Human Rights Campaign is the United States' largest LGBT advocacy group and lobbying organization; according to the HRC, it has more than one million members and supporters...
and the Empowering Spirits Foundation
Empowering Spirits Foundation
The Empowering Spirits Foundation , Inc. is a national non-profit, non-partisan lesbian, gay, bisexual, and transgender civil rights organization in the United States...
, with a heavy focus on the brief's specific arguments. On June 15, 2009, Human Rights Campaign
Human Rights Campaign
The Human Rights Campaign is the United States' largest LGBT advocacy group and lobbying organization; according to the HRC, it has more than one million members and supporters...
President Joe Solmonese
Joe Solmonese
Joe Solmonese is president of the Human Rights Campaign of the United States and its affiliate the Human Rights Campaign Foundation. He was appointed to this position on March 9, 2005. A native of Attleboro, Massachusetts, Solmonese lives in Washington, D.C...
sent a four page letter to President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
in response to the Department of Justice brief, in which he laid out the case of LGBT
LGBT
LGBT is an initialism that collectively refers to "lesbian, gay, bisexual, and transgender" people. In use since the 1990s, the term "LGBT" is an adaptation of the initialism "LGB", which itself started replacing the phrase "gay community" beginning in the mid-to-late 1980s, which many within the...
people as equal human beings and urged, "We call on you to put your principles into action and send legislation repealing DOMA to Congress." On February 23, 2011, Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
Eric Holder
Eric Holder
Eric Himpton Holder, Jr. is the 82nd and current Attorney General of the United States and the first African American to hold the position, serving under President Barack Obama....
announced that the Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
would cease legal defense of the Act's Section 3 at the direction of President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
, who had concluded that Section 3 was unconstitutional. In a separate letter to House Speaker Boehner, Holder noted that Congress will still have an opportunity to participate in these lawsuits in the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
's absence.
Repeal attempts
On September 15, 2009, three Democratic members of Congress, Jerrold NadlerJerrold Nadler
Jerrold Lewis "Jerry" Nadler is the U.S. Representative for , serving since 1992. He is a member of the Democratic Party.The district includes the west side of Manhattan from the Upper West Side down to Battery Park, including the site where the World Trade Center stood...
of New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, Tammy Baldwin
Tammy Baldwin
Tammy Suzanne Green Baldwin is the U.S. Representative for Wisconsin's 2nd congressional district, serving since 1999. She is a member of the Democratic Party. In September 2011, Baldwin announced she would be a candidate in the 2012 U.S...
of Wisconsin
Wisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
, and Jared Polis
Jared Polis
Jared Schutz Polis is an American entrepreneur, philanthropist, and U.S. Representative for , serving since 2009. He is a member of the Democratic Party...
of Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
, introduced legislation to repeal DOMA called the Respect for Marriage Act
Respect for Marriage Act
The Respect for Marriage Act, or RFMA , is a proposed bill in the United States Congress that would repeal the Defense of Marriage Act and allow the U.S. federal government to provide benefits to couples in a same-sex marriage; the bill would not compel individual states to recognize same-sex...
. The bill had 91 original co-sponsors in the House of Representatives. However, Congressman Barney Frank
Barney Frank
Barney Frank is the U.S. Representative for . A member of the Democratic Party, he is the former chairman of the House Financial Services Committee and is considered the most prominent gay politician in the United States.Born and raised in New Jersey, Frank graduated from Harvard College and...
and John Berry
John Berry (administrator)
Morrell John Berry is an American administrator and director of the United States Office of Personnel Management.Berry was born in Montgomery County, Maryland, to parents who worked for the federal government...
, head of the Office of Personnel Management, did not support that effort, stating that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management
Gill v. Office of Personnel Management
Gill et al. v. Office of Personnel Management 699 F.Supp.2d 374 is a lawsuit filed in the United States District Court for the District of Massachusetts...
filed by Gay & Lesbian Advocates & Defenders.
On February 23, 2011, following Attorney General Eric Holder
Eric Holder
Eric Himpton Holder, Jr. is the 82nd and current Attorney General of the United States and the first African American to hold the position, serving under President Barack Obama....
's announcement that the Obama Administration would no longer defend DOMA Section 3 in court, Senator Dianne Feinstein
Dianne Feinstein
Dianne Goldman Berman Feinstein is the senior U.S. Senator from California. A member of the Democratic Party, she has served in the Senate since 1992. She also served as 38th Mayor of San Francisco from 1978 to 1988....
announced her intent to introduce legislation in the Senate Judiciary Committee to repeal DOMA. On March 16, 2011, the Respect for Marriage Act was re-introduced in both houses during the 112th Congress. The House version was introduced by Nadler, and the Senate version by Feinstein. The Senate Judiciary Committee voted 10-8 in favor of advancing the bill to the Senate floor, where it would require 60 votes in order to end a potential fillibuster.
Constitutionality
DOMA’s two effective sections raise separate constitutional issues.Section 2 of DOMA explicitly addresses the constitutional requirement expressed in the Full Faith and Credit Clause
Full Faith and Credit Clause
The Full Faith and Credit Clause is the familiar name used to refer to Article IV, Section 1 of the United States Constitution, which addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to...
in Article IV Section 1 of the United States Constitution, quoting its language directly. That clause establishes that the states have certain reciprocal obligations to one another, specifically to recognize each other's "public Acts, Records, and judicial Proceedings." That same section of the Constitution gives Congress the authority to legislate on the question of those obligations. Section 2 of DOMA excludes same-sex marriages from the state "acts" that any other state needs to recognize.
Section 3 of DOMA defining "marriage" and "spouse" for federal purposes raises a more extensive variety of constitutional issues. On February 23, 2011, Attorney General Eric Holder and President Obama announced their conclusion that "a more heightened standard of scrutiny" is necessary for sexuality-based classifications and consequently that DOMA Section 3 is unconstitutional.
Early challenges
Early challenges to DOMA in federal courts failed. They included, for example, an attempt by a same-sex couple in the state of Washington, married in Canada, to file a joint bankruptcy petition, and an attempt by a Florida same-sex couple, married in Massachusetts, to have their marriage license accepted in Florida.Tribunals
In 2009, United States Court of Appeals for the Ninth CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
Judge Stephen Reinhardt
Stephen Reinhardt
Stephen Roy Reinhardt is a circuit judge on the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was appointed in 1980 by President Jimmy Carter.-Education and practice:...
declared DOMA unconstitutional in an employment dispute resolution tribunal, where the federal government refused to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson. As an employee of the federal judiciary, Levenson is prohibited from suing his employer in federal court. Rather, employment disputes are handled at employment dispute resolution tribunals in which a federal judge hears the dispute in their capacity as a dispute resolution official.
Golinski v. Office of Personnel Management
Golinski v. Office of Personnel Management, No. 10-00257 (N.D. Cal.), began in an employment dispute resolution tribunal and then became a challenge to DOMA in federal court. In 2008, Karen Golinski, a 19-year employee of the Ninth Circuit Court of Appeals, applied for health benefits for her spouse. When that application was denied, she filed a complaint under the Ninth Circuit's Employment Dispute Resolution Plan. Chief Judge Alex KozinskiAlex Kozinski
Alex Kozinski is Chief Judge of the United States Court of Appeals for the Ninth Circuit, an essayist, and a judicial commentator.-Biography:...
ruled in 2009 that she was entitled to spousal health benefits, but the Office of Personnel Management
Office of Personnel Management
The United States Office of Personnel Management is an independent agency of the United States government that manages the civil service of the federal government. The current Director is John Berry.-History:...
announced that it would not comply with the ruling. In January 2010, Lambda Legal
Lambda Legal
Lambda Legal is an American civil rights organization that focuses on lesbian, gay, bisexual, transgender communities as well as people living with HIV/AIDS through impact litigation, education, and public policy work.Lambda's founder William J. Thom, Esq...
filed suit against the federal government in the U.S. District Court for the Northern District of California, in accordance with the terms of the Employment Dispute Resolution Plan. On March 17, 2011, U.S. District Judge Jeffrey S. White dismissed the suit on procedural grounds, but invited the plaintiffs to amend their suit to argue the unconstitutionality of DOMA Section 3, which they did on April 14. On May 3, 2011, on behalf of the Bipartisan Legal Advisory Group
Bipartisan Legal Advisory Group
The Bipartisan Legal Advisory Group is a standing body of the U.S. House of Representatives. Comprising 5 members of the House leadership , it directs the activities of the House Office of General Counsel...
(BLAG), former United States Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
Paul Clement
Paul Clement
Paul Drew Clement is a former United States Solicitor General and current Georgetown University legal professor. He is also an adjunct professor at New York University School of Law. He was nominated by President George W...
filed a motion to dismiss, raising arguments previously avoided by the Department of Justice that DOMA's definition of marriage is valid "because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children." On July 1, 2011, the DOJ filed a brief in support of Golinski's suit, in which it detailed for the first time its case for heightened scrutiny based on "a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities" and its arguments that DOMA Section 3 fails to meet that standard.
A September 20, 2011 letter from New York archbishop Timothy Dolan, which included a 3-page analysis by the U.S. Conference of Catholic Bishops, cited the brief as evidence that the DOJ "has shifted ... to actively attacking DOMA's constitutionality". Dolan predicted current federal actions would "precipitate a national conflict between church and state of enormous proportions and to the detriment of both institutions."
Smelt v. County of Orange
In February 2004, Arthur Smelt and Christopher Hammer sued Orange County, CaliforniaOrange County, California
Orange County is a county in the U.S. state of California. Its county seat is Santa Ana. As of the 2010 census, its population was 3,010,232, up from 2,846,293 at the 2000 census, making it the third most populous county in California, behind Los Angeles County and San Diego County...
in federal court for refusing to issue them a marriage license. The district court ruled that the couple did not have standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to challenge Section 2 of DOMA and rejected their challenge to the constitutionality of Section 3. On May 5, 2006, the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
dismissed the suit, and on October 10 the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
refused to consider the couple's appeal. On March 9, 2009, the same couple, having legally married in California, filed another lawsuit, challenging the constitutionality of DOMA and California's Proposition 8
California Proposition 8 (2008)
Proposition 8 was a ballot proposition and constitutional amendment passed in the November 2008 state elections...
. District Judge David O. Carter
David O. Carter
David O. Carter is a United States District Court Judge for the Central District of California.-Biography:...
dismissed the case on August 24, because the couple had not applied for and been denied any federal benefit and therefore lacked "an injury in fact."
Gill and Massachusetts
On March 3, 2009, GLAD filed a federal courtUnited States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
challenge, Gill v. Office of Personnel Management
Gill v. Office of Personnel Management
Gill et al. v. Office of Personnel Management 699 F.Supp.2d 374 is a lawsuit filed in the United States District Court for the District of Massachusetts...
based on the Equal Protection Clause and the federal government's heretofore consistent deference to each state's definition of marriage. The case questioned only the DOMA provision that the federal government defines marriage as the union of a man and a woman. On May 6, 2010, Judge Joseph L. Tauro
Joseph Louis Tauro
Joseph Louis Tauro is a United States federal judge. He is the son of the late Massachusetts Chief Justice G. Joseph Tauro.Born in Winchester, Massachusetts, Tauro received an A.B. from Brown University in 1953 and an LL.B. from Cornell Law School in 1956. He was a First Lieutenant in the United...
heard arguments in the U.S. District Court in Boston.
On July 8, 2009, Massachusetts Attorney General Martha Coakley
Martha Coakley
Martha Mary Coakley is the Attorney General of the Commonwealth of Massachusetts. Prior to serving as Attorney General, she was District Attorney of Middlesex County, Massachusetts from 1999 to 2007....
filed a suit, Massachusetts v. United States Department of Health and Human Services
Massachusetts v. United States Department of Health and Human Services
Commonwealth of Massachusetts v. United States Department of Health and Human Services 698 F.Supp.2d 234 is a lawsuit filed in the United States District Court for the District of Massachusetts...
, challenging the constitutionality of DOMA. The suit claims that Congress "overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people." Judge Tauro heard arguments in Massachusetts on May 26, 2010.
On July 8, 2010, Judge Tauro issued his rulings in both Gill and Massachusetts, granting summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
for the plaintiffs in both cases. He found in Gill that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
. In Massachusetts he held that the same section of DOMA violates the Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
and falls outside Congress' authority under the Spending Clause
Taxing and Spending Clause
Article I, Section 8, Clause 1 of the United States Constitution, is known as the Taxing and Spending Clause. It is the clause that gives the federal government of the United States its power of taxation...
of the Constitution. Those decisions were automatically stayed for two weeks by federal court rules and were stayed further after the Department of Justice entered an appeal on October 12, 2010.
On November 3, 2011, 133 Democrats from the US House of Representatives filed an amicus brief in support of the plaintiffs in Gill and Massachusetts, asserting their belief that §3 of DOMA is unconstitutional. Included among the members of Congress signing the amicus curiae were 14 members who had voted for the bill’s passage in 1996.Seventy major employers have also filed an amicus brief supporting getting rid of DOMA.
Pedersen and Windsor
Two more suits were filed on November 9, 2010, in courts that are part of the Second CircuitUnited States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
, where no precedent exists for the standard of review to be followed in sexual-orientation discrimination cases.
GLAD filed Pedersen v. Office of Personnel Management
Pedersen v. Office of Personnel Management
Pedersen et al. v. Office of Personnel Management is a lawsuit filed on November 9, 2010, in the United States District Court for the District of Connecticut...
in District Court in Connecticut making on behalf of same-sex couples in Connecticut, Vermont, and New Hampshire the same arguments it made in Gill.
The American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
and the law firm Paul, Weiss, Rifkind, Wharton & Garrison
Paul, Weiss, Rifkind, Wharton & Garrison
Paul, Weiss, Rifkind, Wharton & Garrison LLP is a law firm headquartered on Sixth Avenue in New York City. The firm has well-noted expertise in its corporate, personal representation, entertainment law and litigation practices, having long been a leader among national litigation firms...
filed Windsor v. United States
Windsor v. United States
Windsor v. United States is a lawsuit filed in the United States District Court for the Southern District of New York. The plaintiff in the suit challenges the constitutionality of section 3 of the Defense of Marriage Act , which defines the terms "marriage" as "a legal union between one man and...
in New York on behalf of a surviving same-sex spouse whose inheritance from her deceased spouse had been subject to federal taxation as if they were unmarried. New York Attorney General Eric Schneiderman
Eric Schneiderman
Eric T. Schneiderman is the 65th and current New York Attorney General.-Early life, education, and early career:Schneiderman graduated from Amherst College in 1977 with a B.A...
filed a brief supporting Windsor's claim on July 26, 2011.
Other cases
Other pending DOMA cases as of February 28, 2011, are:- Bishop v. United States, No. 04-848 (N.D. Okla.)
- Dragovich, et al. v. Department of the Treasury, et al., No. 10-1564 (N.D. Cal.)
- Hara v. Office of Personnel Management, No. 09-3134 (Fed. Cir.)
- Lui v. Holder, No. 09-72068 (9th Cir.)
- Torres-Barragan v. Holder, No. 10-55768 (9th Cir.)
Bankruptcy court
In May 2011, DOMA-based challenges by the Department of Justice to joint petitions for bankruptcy by married same-sex couples were denied in two cases, one in the Southern District of New York on May 4 and one in the Eastern District of California on May 31. Both rulings stressed practical considerations and avoided ruling on DOMA.On June 13, 2011, 20 of the 25 judges of the U.S. Bankruptcy Court for the Central District of California signed an opinion in the case in re Balas and Morales that found that a same-sex married couple filing for bankruptcy "have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled." The decision found DOMA Section 3 unconstitutional and dismissed the BLAG's objections to the joint filing. It said:
A spokesman for House Speaker Boehner said the Bipartisan Legal Advisory Group (BLAG) would not appeal the ruling, though the United States Trustee for California later filed a motion for leave to appeal.
On July 7, 2011, the DOJ announced that after consultation with the BLAG it will no longer raise objections to "bankruptcy petitions filed jointly by same-sex couples who are married under state law".
Lui v. Holder
On September 29, 2011, U.S. District Court Judge Stephen V. WilsonStephen Victor Wilson
Stephen Victor Wilson is a judge on the United States District Court for the Central District of California.Born in New York, New York, Wilson received a B.A. from Lehigh University in 1963, a J.D. from Brooklyn Law School in 1967, and an LL.M. from George Washington University Law School in 1973....
rejected a challenge against DOMA, citing Adams v. Howerton
Adams v. Howerton
Richard Frank Adams, et. al., v. Joseph D. Howerton, 673 F.2d 1036. , cert. denied, 458 U.S. 1111 is a decision from the United States Court of Appeals for the Ninth Circuit that held that the term "spouse" refers to an opposite sex partner for the purposes of immigration law and that this...
as binding precedent. The plaintiffs there challenged the denial of immediate relative status to the same-sex spouse of an American citizen.
Obama administration
On February 23, 2011, Attorney General Eric Holder released a memo regarding two lawsuits challenging DOMA Section 3, Pedersen v. OPM and Windsor v. United States. He said, "After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases." On February 24, the Department of Justice notified the First Circuit Court of AppealsUnited States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
that it will "cease to defend" Gill and Massachusetts as well. On July 1, 2011, the DOJ, with a filing in Golinski, intervened for the first time on behalf of a plaintiff seeking to have DOMA Section 3 ruled unconstitutional, arguing that laws that use sexual orientation as a classification need to pass the court's strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
standard of review. The DOJ made similar arguments in a filing in Gill on July 7.
Congressional action to continue defense
On March 4, 2011, Boehner announced plans to convene the BLAG to consider how the House of Representatives should defend DOMA Section 3 in place of the Department of Justice, and on March 9 the committee voted 3-2 to do so.On April 18, 2011, House leaders announced they had picked former United States Solicitor General Paul Clement to represent the BLAG, and Clement, without opposition from other parties to the case, filed a motion to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA. On April 25, 2011, King & Spalding
King & Spalding
King & Spalding LLP is an American law firm with 125 years of service. It was founded in Atlanta, Georgia in 1885 by Alexander C. King and Jack Spalding. The firm has expanded nationally, with offices in Austin, Charlotte, Houston, New York, San Francisco, Silicon Valley, and Washington, D.C...
, the law firm
Law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients about their legal rights and responsibilities, and to represent clients in civil or criminal cases, business transactions, and other...
through which Clement was handling the case, announced it was dropping the case. On the same day, Clement resigned from King & Spalding in protest and joined Bancroft PLLC
Bancroft PLLC
Bancroft PLLC is an American law firm headquartered in Washington, D.C.. Viet D. Dinh is the firm's principal...
, which took on the case. The House's initial contract with Clement capped legal fees at $500,000,, but on September 30, a revised contract raised the cap to $1.5 million. A spokesman for Boehner explained that the BLAG would not appeal in all cases, citing bankruptcy cases that are "unlikely to provide the path to the Supreme Court....[E]ffectively defending [DOMA] does not require the House to intervene in every case, especially when doing so would be prohibitively expensive."
DOMA and state legislation
Since the passage of DOMA, there has been an increased focus on the variety among states with regard to the legal status of same-sex marriage. Some states have proactively, by legislation or referendum, determined that they will not recognize same-sex marriages.Only Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia allow marriages between persons of the same sex. The California Supreme Court legalized same-sex marriage on June 16, 2008, but on November 4, 2008, voters passed a constitutional amendment to restrict marriage to members of the opposite sex. The amendment has since been declared unconstitutional in federal court, but same-sex marriages have not resumed in California because the case is still being appealed.
New Mexico and Maryland recognize such marriages from other jurisdictions. Other states recognize such a marriage as a non-marriage relationship such as a civil union or domestic partnership (California, Hawaii, Illinois, Nevada and New Jersey).
Some states recognize civil unions to represent same-sex relationships, considering them equivalent to marriage. Other states (including Nevada) have domestic partnerships in place to grant same-sex relationships some of the benefits the state bestows on married couples. However, there are procedural differences such as differing age limitations (in many states, the legal age to marry is 16, while the legal age to enter into a domestic partnership is 18), residential requirements (married individuals are not required to live in the same residence with their spouse, while domestic partners are required to share a residence, although in states such as Nevada such co-residency may be part-time).
A majority of the states, including those that have some benefits for same-sex relationships, have restricted recognition of marriage to unions of one man and one woman in state law, have some law defining marriage as such, or have an amendment to their state constitution to that effect. As of April 2009, 29 states have enacted constitutional amendments defining marriage as the union of a man and a woman, and another 13 states have statutory bans, including Maine, which approved a same-sex marriage law that was repealed by referendum in the United States general elections, 2009.
See also
- Baker v. NelsonBaker v. NelsonRichard John Baker v. Gerald R. Nelson was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to different-sex couples and that this limitation did not violate the United States Constitution...
- LGBT rights in the United States
- Marriage ActMarriage Act-Australia:-Canada:-New ZealandSouth Africa:-Australia::The Marriage Act 1961, Australia's law that governs legal marriage.-Canada::The Civil Marriage Act passed in Canada explicitly permitting same-sex marriages.-New Zealand:...
- Marriage Protection ActMarriage Protection ActThe Marriage Protection Act is a bill in the United States Congress to amend the federal judicial code to deny federal courts jurisdiction to hear or decide any question pertaining to the interpretation of the Defense of Marriage Act or the MPA...
- Same-sex marriage in the United StatesSame-sex marriage in the United StatesThe federal government does not recognize same-sex marriage in the United States, but such marriages are recognized by some individual states. The lack of federal recognition was codified in 1996 by the Defense of Marriage Act, before Massachusetts became the first state to grant marriage licenses...
- Same-sex unions in the United StatesSame-sex unions in the United StatesSame-sex unions in the United States are legally recognized in some states and municipalities in various forms. These are same-sex marriage, civil unions, domestic partnerships, and reciprocal beneficiary relationships. Legally recognized same-sex unions can be formed in thirteen states and the...
- Religion in the United StatesReligion in the United StatesReligion in the United States is characterized by both a wide diversity in religious beliefs and practices, and by a high adherence level. According to recent surveys, 83 percent of Americans claim to belong to a religious denomination, 40 percent claim to attend services nearly every week or...
- Separation of Church and State in the United StatesSeparation of church and state in the United StatesThe phrase "separation of church and state" , attributed to Thomas Jefferson and others, and since quoted by the Supreme Court of the United States, expresses an understanding of the intent and function of the Establishment Clause of the First Amendment to the Constitution of the United States...
External links
- Senate debate on DOMA
- Summary and analysis at Lectric Law
- House roll call vote
- Senate roll call vote
- About.com state-by-state list
- GovTrack
- THOMAS (Library of Congress)
- Court decision in Gill v. Office of Personnel Management
- Court decision in Commonwealth v. United States Department of Health and Human Services