The Defense of Marriage Act (DOMA) was a United States federal law passed by the 104th United States Congress and signed into law by President Bill Clinton on September 21, 1996. It banned federal recognition of same-sex marriage by limiting the definition of marriage to the union of one man and one woman, and it further allowed states to refuse to recognize same-sex marriages granted under the laws of other states.
Congressman Bob Barr and Senator Don Nickles, both members of the Republican Party, introduced the bill that became DOMA in May 1996. It passed both houses of Congress by large, veto-proof majorities. Support was bipartisan, though about a third of the Democratic caucus in both the House and Senate opposed it. Clinton criticized DOMA as "divisive and unnecessary". He nonetheless signed it into law in September 1996.
Section 2 of the act allowed states to deny recognition of same-sex marriages conducted by other states. Section 3 codified non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, social security survivors' benefits, immigration, bankruptcy, and the filing of joint tax returns. It also excluded same-sex spouses from the scope of laws protecting families of federal officers, laws evaluating financial aid eligibility, and federal ethics laws applicable to opposite-sex spouses.
After its passage, DOMA was subject to numerous lawsuits and repeal efforts. In United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process Clause, thereby requiring the federal government to recognize same-sex marriages conducted by the states. In Obergefell v. Hodges (2015), the Court held that same-sex marriage was a fundamental right protected by both the Due Process Clause and the Equal Protection Clause. The ruling required all states to perform and recognize the marriages of same-sex couples, leaving Section 2 of DOMA as superseded and unenforceable, at which point the only remaining part of the legislation which remained valid was Section 1 relating to its title. On December 13, 2022, DOMA was repealed by the passage of the Respect for Marriage Act which was signed into law by President Joe Biden, who had previously voted in favor of DOMA as a United States Senator.
Background
The issue of legal recognition of same-sex marriage attracted mainstream attention infrequently until the 1980s. A sympathetic reporter heard several gay men raise the issue in 1967 and described it as "high among the deviate's hopes". In one early incident, gay activist Jack Baker brought suit against the state of Minnesota in 1970 after being denied a marriage license to marry another man; the Minnesota Supreme Court ruled (in Baker v. Nelson) that limiting marriage to opposite-sex couples did not violate the Constitution. Baker later changed his legal name to Pat Lynn McConnell and married his male partner in 1971, but the marriage was not legally recognized. A 1972 off-Broadway play, Nightride, depicted "a black–white homosexual marriage".For a review of the play see In 1979, IntegrityUSA, an organization of gay Episcopalians, raised the issue when the U.S. Episcopal Church considered a ban on the ordination of homosexuals as priests.For the theological background beginning in 1967, see
The New York Times said the question was "all but dormant" until the late 1980s when, according to gay activists, "the AIDS epidemic... brought questions of inheritance and death benefits to many people's minds." In May 1989, Denmark established registered partnerships that granted same-sex couples many of the rights associated with marriage. In the same year, New York's highest court ruled that two homosexual men qualified as a family for the purposes of New York City's rent-control regulations. Within the movement for gay and lesbian rights, a debate between advocates of sexual liberation and of social integration was taking shape, with Andrew Sullivan publishing an essay "Here Comes the Groom" in The New Republic in August 1989 arguing for same-sex marriage: "A need to rebel has quietly ceded to a desire to belong." In September 1989, the State Bar Association of California urged recognition of marriages between homosexuals even before gay rights advocates adopted the issue.
Gary Bauer, head of the socially conservative Family Research Council, predicted in 1989 that the issue would be "a major battleground in the 1990s". In 1991, Georgia Attorney General Michael J. Bowers (who had previously been the defendant in a failed Supreme Court challenge to a law that criminalized homosexuality) withdrew a job offer to a lesbian who planned to marry another woman in a Jewish wedding ceremony. In 1993, a committee of the Evangelical Lutheran Church in America released a report asking Lutherans to consider blessing same-sex marriages and stating that lifelong abstinence was harmful to same-sex couples. The Conference of Bishops responded, "There is basis neither in Scripture nor tradition for the establishment of an official ceremony by this church for the blessing of a homosexual relationship." In a critique of radicalism in the gay liberation movement, Bruce Bawer's A Place at the Table (1993) advocated the legalization of same-sex marriage.
Baehr v. Miike In the 1993 lawsuit Baehr v. Miike the Supreme Court of Hawaii ruled that preventing same-sex couples from obtaining marriage licenses was sex discrimination. Thus, the court found that the Hawaii State Constitution required the state to demonstrate that its opposite-sex marriage definition satisfied the legal standard known as strict scrutiny.Ken I. Kersch. "Full Faith and Credit for Same-Sex Marriages?" Political Science Quarterly, Volume 112, Issue 1, Spring 1997, Pages 117–136, https://doi.org/10.2307/2658165 This ruling prompted concern among opponents of same-sex marriage, who feared that same-sex marriage might become legal in Hawaii and that other states would recognize or be compelled to recognize those marriages under the Full Faith and Credit Clause of the United States Constitution. This was because "marriage" and "spouse" were largely undefined terms in federal law, with federal courts relying on state law to define what "marriage" practically entailed. To quote the House Judiciary Committee's 1996 report on bill H.R. 3396 (which would become DOMA): "Until the Hawaii situation, there was never any reason to make explicit what has always been implicit — namely, that only heterosexual couples could get married".
In 1995, as Baehr v. Miike progressed through Hawaiian courts, dozens of states proposed and enacted laws which explicitly denied recognition of same-sex marriages performed elsewhere in the US and defined marriage as being between a man and a woman. States would continue enacting these laws even after DOMA passed.
The House Judiciary Committee's 1996 report called for DOMA as a response to Baehr, because "a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits". Additionally, the report claims that four distinct governmental interests would be advanced by DOMA: "(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources".
Text The main provisions of the act were as follows:
Section 1. Short title This Act may be cited as the "Defense of Marriage 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.
Enactment and role of President Clinton Georgia Representative Bob Barr, then a Republican, authored the Defense of Marriage Act and introduced it in the House of Representatives on May 7, 1996. Senator Don Nickles, (R-OK), introduced the bill in the Senate. The House Judiciary Committee stated that the Act was intended by Congress to "reflect and honor a collective moral judgment and to express moral disapproval of homosexuality". The Act's 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."
Nickles said, "If some state wishes to recognize same-sex marriage, they can do so". He said the bill would ensure that "the 49 other states don't have to and the Federal Government does not have to." In opposition to the bill, Colorado Rep. Patricia Schroeder said, "You can't amend the Constitution with a statute. Everybody knows that. This is just stirring the political waters and seeing what hate you can unleash." Barr countered that the Full Faith and Credit Clause of the Constitution grants Congress power to determine "the effect" of the obligation of each state to grant "full faith and credit" to other states' acts.
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 same-sex 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." However, he also criticized DOMA as unnecessary and divisive.
The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress. On July 12, 1996, with only 65 Democrats and then Rep. Bernie Sanders (I-VT) and Rep. Steve Gunderson (R-WI), in opposition, 342 members of the U.S. House of Representatives—224 Republicans and 118 Democrats—voted to pass DOMA. On September 10, 1996, 84 Senators, a majority of the Democratic Senators, including Joe Biden, and all of the Republicans—voted in favor of DOMA. Democratic Senators voted for the bill 32 to 14 (with Pryor of Arkansas absent), and Democratic Representatives voted for it 118 to 65, with 15 not participating. All Republicans in both houses voted for the bill with the sole exception of the one openly gay Republican Congressman, Rep. Steve Gunderson of Wisconsin.