Marriage

Federal Defense of Marriage Act

Federal Defense of Marriage Act

November 30
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Federal Defense of Marriage Act

What To Know About
the Federal Defense of Marriage Act (DOMA)


The Defense of Marriage Act, sometimes shortened to DOMA, is
a federal law in the United States which was signed into the legislature by former
President Bill Clinton on September 21, 1996. In the Federal Defense of
Marriage Act 1996, the federal government explicitly defines marriage to be a legal
union between a man and a woman.

Under the Federal Defense of Marriage Act 1996, no American
state or political subdivision within the United States is required to
recognize a marriage within a same-sex relationship that was set in another
state. The Federal Defense of Marriage Act 1996 passed both the House and
Senate with a large majority. Section 3 of the Defense of Marriage act prevents
the federal government from acknowledging the legal validity of same-sex
marriages. However, this section has been found to be unconstitutional in a
California bankruptcy case, two Massachusetts cases, and by President Obama’s
administration. These rulings are still under appeal.

Social Background of
the Federal Defense of Marriage Act 1996


When the Federal Defense of Marriage Act 1996 was first
passed, it was thought that Hawaii and potentially other states would be quick
to legalize same-sex marriage, either by judicial interpretation or legislation
of either the federal or state constitution. Challengers of such recognition worried
that other states would then be forced to recognize the validity of these
marriages under the authority of the Full Faith & Credit Clause found in
the United States Constitution.

Section 2 of the
Federal Defense of Marriage Act 1996


According to the Report from the House of Representatives on
the Federal Defense of Marriage Act 1996, Section 2, which are the Powers
reserved for the states,  of the act was
written with the intention of protecting the right of the individual States to create
their own public policies in terms of the legal recognition of gay marriages
and same sex unions without having any federal constitutional implications that
could possibly modify the recognition by one State of the right for same sex couples
to obtain marriage licenses.

This section explicitly provides that no individual State will
be required to agree to full faith and to recognize to a marriage license which
was issued by another State if it is regarding to a relationship between
homosexual couples. This basically means that the law upholds the power of each
individual state to make the state’s own decision regarding whether the state
will reject or accept any same-sex marriages that are created in other states
or jurisdictions.

Section 3 of the
Federal Defense of Marriage Act 1996


Section 3, or the definition of marriage, of the law is the
portion of the act that legally defines a marriage in terms of federal uses as
the union explicitly of a woman and a man. However, this portion of the act was
deemed unconstitutional in July 2010 by a federal district court judge. This
decision was then appealed three months later. On February 23, 2011, the Attorney
General Eric Holder publically announced that the United States Justice
Department would no longer act as the legal defense of the Section 3 of the
Federal Defense Marriage Act at the instruction of President Barack Obama, who
had decided that Section 3 of the Federal Defense Marriage act was
unconstitutional.

Despite this, Congress may possibly choose to defend the law
in a courtroom instead of through the administration. March 4, 2011, John
Boehner (the Speaker of the House) announced that he was taking action in order
to defend Section 3 of the Federal Defense of Marriage Act 1996 on behalf of
the United States Department of Justice. Furthermore, the administration wishes
to enforce the Federal Defense of Marriage Act 1996 until and unless Congress legally
repeals Section 3 of the act or the judicial branch places a definitive verdict
against the constitutionality of the section.

Enactment of the
Federal Defense of Marriage Act 1996


In the 1993 Hawaiian Supreme Court case Baehr v. Miike, the
court ruled that the state of Hawaii must show a strong and compelling interest
behind prohibiting same-sex marriage within the state. This legal action
prompted great concern among various opponents of same-sex marriage regarding
the possibility that same-sex marriage could become legal in Hawaii resulting
in other states having to recognize those marriages as valid. The enactment of
the Federal Defense of Marriage Act 1996 was done in order to free individual
states from any sort of obligation in recognizing marriages of homosexual
couples in other states.

The Defense of Marriage Act 1996 was authored by Georgia
Representative Bob Barr, who was at the time a Republican representative. He
then introduced the bill to the House on May 7, 1996. The Congressional
sponsors of the bill stated that the bill worked to amend the United States
Code in order to explicitly state what has been implied and understood for over
200 years under federal law. This fact was that a marriage is only the legal
union of a woman and man as wife and husband, and that a spouse is a member of
the opposite sex.

The bill’s legislative history declares authority to endorse
the law under Article IV Section 1 of the Constitution, which gives Congress the
power to define the full effect of the credit and full faith each state must give
to other states’ acts. Supporters made clear their intent to regularize
heterosexual marriage specifically on as federal level, while allowing other
states to decide individually whether to acknowledge same-sex unions granted from
other states.

The Republican Party platform in 1996 endorsed the Federal
Defense of Marriage Act, making references only to Section 2 of the Act. They
felt that anti-discrimination laws should not be distorted so heavily in order
to cover sexual preference. Furthermore, the platform also endorsed the Federal
Defense of Marriage Act and its ability to prevent states from being legally forced
to recognize homosexual unions. The platform of the Democratic Party in 1996 did
not mention the Defense of Marriage Act or marriage in general.

In an interview in June 1996 in The Advocate, the gay and
lesbian magazine, Former President Clinton said that he was opposed to same-sex
marriage as he felt that marriage was an institution reserved for the union of
a woman and a man. He did not revisit or mention the stance in his autobiography
written in 2004. As time progressed, former President Clinton’s personal views regarding
same-sex marriage slowly shifted. In July 2009, Clinton said that he placed his
support in individuals doing what they feel they want to do and that others
should not stop gay marriage because of it. He also showed support for gay
marriage but felt it should not be a federal question, but rather all states
should be in support of it.

The bill for the Federal Defense of Marriage Act moved
through Congress on a fast track and found overwhelming approval in both the
House and Senate, which were both Republican-controlled. The bill passed with a
vote in the Senate of 85–14 and a vote in the House of Representatives of
342–67.  On September 21, 1996, the act
was signed into legislation by President Bill Clinton.

Recognition of Gay
Marriage In Response of the Defense of Marriage Act


Since the enactment of Federal Defense of Marriage Act 1996,
many states have allotted licenses for same-sex marriages. These states include
the District of Columbia, New York, Massachusetts, New Hampshire, California,
Connecticut, Iowa, and Vermont.

Maryland and New Mexico recognize the homosexual marriages
set from other jurisdictions. California, Illinois, Hawaii, New Jersey, and
Nevada also recognize such a marriage as a domestic partnership or civil union.

Certain states recognize civil unions in order to represent
homosexual relationships, and make these relationships equivalent to marriage.
Other states such as Nevada have domestic partnerships in order to grant
same-sex relationships some legal status and benefits that the state normally
places on married couples.

A majority of the states have very restricted recognition of
marriage limited to one woman to one man. Up until April 2009, 29 states in the
United States have created constitutional amendments that define marriage as
the union of a woman and a man, while another 13 states have set up statutory
bans, that approved a gay marriage law that was first repealed by referendum in
the general elections of 2009.

Later Politics of the
Federal Defense of Marriage Act 1996


The Republican Party platform in 2000 endorsed the Defense
of Marriage Act in overall terms but presented a concern about potential
judicial action. The party continued to hold the stance that federal law should
not force other states to recognize other arrangements beside one woman and one
man as marriages. The same year, the Democratic Party platform did not mention
the Defense of Marriage Act or marriage within this context.

In 2008, Congressman Barr publicly apologized for sponsoring
the Defense of Marriage Act and stated that the law should be repealed on the
basis that the act violated the principles of federalism.

Full Text of the
Federal Defense of Marriage Act 1996

<DOC>

[DOCID: f:publ199.104]

 

[[Page 110 STAT. 2419]]

 

Public Law 104-199

104th Congress

                                 An Act

 

 To define and protect
the institution of marriage. <<NOTE: 
Sept. 21,

                        
1996 –  [H.R. 3396]>>

 

    Be it enacted by
the Senate and House of Representatives of the

United States of America in Congress assembled,
<<NOTE: Defense of

Marriage Act.>>

 

SECTION 1. <<NOTE: 1 USC 1 note.>> 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.”.

 

[[Page 110 STAT. 2420]]

 

    (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’.”.

 

    Approved September
21, 1996.

 

LEGISLATIVE HISTORY–H.R. 3396:

—————————————————————————

 

HOUSE REPORTS: No. 104-664 (Comm. on the Judiciary).

CONGRESSIONAL RECORD, Vol. 142 (1996):

            July 11,
12, considered and passed House.

            Sept. 10,
considered and passed Senate.

 

                                  <all>

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