H.R. 3396, the Defense of Marriage Act
(DOMA) - The Background: Agnes Skrodzki
Introduced in May 1996, H.R. 3396 purposes were: defending and nurturing the
institution of traditional heterosexual marriage; defending traditional notions of morality;
protecting state sovereignty and democratic self-governance; and preserving scarce government
resources. It is passed. H.R. 3396 is a reaction to the 1993 Hawaii lawsuit, Baehr v. Lewin. With
Hawaii Courts appearing to allow same-sex couples to marry, this threatened federal laws and
marriage laws of various states. This issue brought the case in which if one state chooses to
recognize same-sex marriages, other States who do not recognize it are confronted with the
obligation, as well as federal laws obligated for such unions, to have benefits as heterosexual
couples do under the “Full Faith and Credit Clause of the United States Constitution:”
Full Faith and Credit shall be given in each State to the public acts, records, and judicial
proceedings of every other State. And the Congress may by general laws prescribe the
manner in which such acts, records and proceeding shall be proved, and the effect
thereof.
The Defense of Marriage Act (H.R.3396) is the resolution to these specific problems that
would be created if one State chooses to acknowledge same-sex marriage, on a federal level as
well as a State level. Since States created their laws regarding marriage licenses, DOMA protects
their laws against the “Full Faith and Credit Clause” under section 2: “Powers Reserved to the
States.” Many federal laws and acts referred to the words “marriage” and “spouse” numerous
times, with section 3 “definition of ‘marriage’ and ‘spouse’” DOMA protects these federal laws
in stating that the definition of “marriage” and “spouse” refers to the opposite sex, not same sex.
H.R. 3396 was motivated from the lawsuit in Hawaii, Baehr v. Lewin. The case was
about three homosexual couples, two lesbians and one gay couple, that filed for a marriage
application in the Department of Health (DOH) in Hawaii, December of 1990. Hawaii denied the
applications for the fact that Hawaii as a state did not permit same-sex marriages. In 1991, these
three couples filed a lawsuit in state courts, challenging the denial of the marriage licenses as a
violation of the Hawaii Constitution. The State court denied their argument. The plaintiffs
appealed it to the Hawaii Supreme Court in May 1993. Justice Levinson and Chief Justice Moon
stated that the denial of marriage licenses to same-sex couples constitutes discrimination on the
basis of sex. In Hawaii Constitution under the Equal Protection Clause both justices claimed that
sex is a “suspect category” which ruled that the marriage statute could be upheld only if the State
could satisfy the strict scrutiny test. Another Justice joined with Justice Levinson and Chief
Justice Moon to re-appeal the court’s dismissal of the case.
Hawaii’s Constitution was then faced with the fact if their heterosexual marriage law was
unconstitutional. The case was sent back and from this trial Hawaii courts might require States to
issue marriage licenses to same-sex couples. Many in Hawaii were against the idea of same-sex
couples marriages and still believed that the state should license only heterosexual couples. As
Hawaii had the possibility of allowing same-sex couples to marry another issue arose from this
case: the obligation of other States to allow same-sex couples to marry due to the “Full Faith and
Credit Clause” as well as homosexual couples fighting for federal benefits under the same
clause.
This lawsuit threatened states in regards to their marriage laws and the definition of
marriage and spouse federal law. Congress enacted the Defense of Marriage Act (DOMA)
because of the fear Baehr v. Lewin brought about to other States marriage laws and federal laws.
The two sections that apply are Section 2: “Powers Reserved to the States” and Section 3
“Definition of Marriage.”
Section 2 “Powers Reserved to the States” states that “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 proceedings 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 2 protects each State as having individual marriage laws and having no obligation
under the Full Faith and Credit Clause of the United States Constitution to recognize a same-sex
“marriage” in their State. Under DOMA section 2, the state has its own right to choose if it
permits same-sex marriage, that the federal government has no say in its choice.
Section 3 “Definition of Marriage” states that “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.”
This section applies to federal law only, therefore has no effect on State’s manner. In any
case that a State chooses to recognize same-sex marriage, this section 3 of DOMA will not
recognize that marriage under federal law purposes. Section 3 purpose is for federal laws only.
Section 3 of DOMA will be questioned if it is unconstitutional in Gill v. Office of Personnel
Management (OPM).
Cases in regards to same-sex marriages in the past have defended by DOJ in regards to
DOMA. Recent cases have not had strong support from DOJ regarding DOMA. In Gill v. Office
of Personnel Management, in the District of Massachusetts, seven same-sex couples married in
Massachusetts and three survivors of same-sex spouses, also married in Massachusetts. These
couples have been denied their federal marriage benefits that are allowed for heterosexual
couples. Their claim for federal marriage benefits that are denied by Section 3 of DOMA violates
the Equal Protection Principles in the Due Process Clause of the Fifth Amendment. The plaintiffs
argument against three federal health benefit programs that have denied them benefits: Federal
Employees Health Benefits Program (FEHB); Federal Employees Dental and Vision Insurance
Program (FEDVIP); Federal Flexible Spending Arrangement. These couples have been denied in
their request to add their spouses to FEHB, FEDVIP, FSA and Social Security Benefits. Each
plaintiff was denied their rights for their spouses to have same benefits as they did by the
determination of OPM that stated that they did not recognize these marriages under Section 3 of
DOMA.
The decision by the court was that Section 3 of DOMA violates the equal protection
principles embodied in the Fifth Amendment to the United States Constitution and therefore is
unconstitutional. DOJ of DOMA chooses not to appeal this case and so Representative Lamar
Smith who is for defending the purpose of DOMA wishes to intervene and to appeal this
decision and defend Section 3 of DOMA. Representative Smith is entitled to intervene and has a
right to since he meets the requirements for intervention, he should be able to for the protection
of DOMA’s purposes since DOJ continues to disavow them.
There are many ongoing cases regarding DOMA and its constitutionality in regards to
federal laws that has prevented same-sex couples from benefits and also with States’ rights in
allowing same-sex couples marriage or denying recognition of it from another State’s
recognition is unconstitutional.
DOMA – The Arguments: Christina Pisano
In Section 3 of the Defense of Marriage Act, marriage is defined as the legal union only
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. The Act was intended to free states from
any obligation to recognize the marriage of same-sex couples in other states. In this light,
DOMA does not seek to discriminate against homosexual marriage but to recognize and honor
those states which choose not to sanction same-sex marriage. It merely affords a federal
government which does not impose upon the power of the state. The Act reaffirms that the
matter of same-sex marriage is left to the discretion of state.
Arguments which attack the Defense of Marriage Act on the grounds that it merely
represents a private moral or religious point of view and serves no legitimate purpose rings
hollow when one considers that so many of the laws in this country are based, at least in part, on
private moral, or religious views. To strike down DOMA simply because it is based on the
upholding of moral societal norms is insufficient cause. It is acceptable for the government to
approve of and promote a certain moral view, so long as this moral view does not condemn or
criminalize an opposing moral view. Under the Act, same-sex couples are not banned from
forming a union or co-inhabited relationship. The sole purpose of this Act, therefore, is not to
condemn or criminalize homosexuality and so it can not be ruled unconstitutional. Though it
does decline to provide federal support to non-heterosexual marriages, DOMA does not
discriminate against the institute of gay marriage. Rather, it seeks to uphold the freedom of the
states to refuse recognition of homosexual marriages.
In order to defend this act, reason is found in Argument A: the court cannot strike down a
law which represents a moral view because legislators and the courts uphold moral views
interminably, so long as they do not show favor to an exclusively religious point of view. DOMA
does not seek to only promote heterosexual marriages which are ecclesiastically performed. On
this basis, the Act does not exclusively support a purely religious view or institution and so it can
not be struck down under the separation of church and state. DOMA is also not an issue
concerning privacy. There is no language in the Act which assumes to intrude on or mandate
how private relationships are conducted. The decision of the case of Loving v. Virginia
determined that marriage is a “social relation subject to the State’s police power.” It is, through
this decision, acceptable to consider marriage a predominantly social institution. While it has
religious connotations at times, it is not a purely religious issue. Marriage is therefore subject to
the judgment and scrutiny of a societal majority. It is essentially an issue of state power which
can only be upheld through DOMA.
Furthermore, moral judgments regarding public conduct have been found to be within the
state’s policing powers in the past. The decision of the 1991 case Barnes v. Glen Theatre
outlawed certain forms of expressive conduct on the basis that the government can regulate with
an interest in protecting the morality and order of society. It is an impossibility to construct a law
intended to do social good without making value judgments or employing moral reasoning. On
this basis, DOMA, like any act or law which seeks to regulate society, can not be attacked for
making judgment in value or employing moral reasoning.
Sub-Argument A reasons that DOMA does not discriminate against gay marriage but
promotes straight marriage. Government can rightfully pass laws which promote the latter
without seeking to disadvantage the former. In the case of DOMA, one can value a particular
idea without harboring the desire to harm or disadvantage an idea that is indirectly or even
directly in opposition to it. As in the case of music, one can favor a particular genre such as Rock
without seeking to discriminate against another genre, say Country. Likewise, the government
can lawfully withhold funding from abortion clinics without seeking to criminalize all abortive
processes. In this particular case, the decision to offer abortion clinics is left to the discretion of
the state and the funds of private, nongovernmental organizations. Following these examples,
DOMA can certainly be upheld to encourage heterosexual marriage without harming same-sex
marriage.
There also exists further legal precedent for this balancing act. In the case of Bob Jones
University v. United States, the university was known to not admit students who engaged in
interracial dating. While the government recognized that it did not have the power under the
Constitution to criminalize such an act, it did retain the authority to withdraw support for it. As a
result, the University lost its tax-exempt status. Wherein this case represents an example of the
government’s right to refuse funding to an institution which employed racially-determined
admission qualifications, it also represents the governmental freedom to delegate federal benefits
to its discretion. Under this precedent, DOMA is an act in which the government can rightfully
decide to refuse benefits without criminalizing or discriminating against the institution as a
whole.
In order to further defend this act, reason is found in Argument B: if same sex marriage is
federally recognized, in which case DOMA would be overturned, then all other types of
arrangements such as polygamy and non-committed co-inhabited relationships could essentially
be passed through the court as both legal and legitimate instances of constituting marriage. It is
evident that, at the present time, no states allow polygamy whereas many states do allow samesex marriage. However, overturning DOMA in order to force the federal government to
recognize state law as it exists would afford polygamous practitioners the opportunity to argue
for state and federally recognized polygamous marriages. It is necessary for DOMA to be
upheld in order to maintain the normative ideals of the majority of Americans. This act is not a
persecution of those ideals which deviate from the norm but a critique outlining the limited
power to represent those interests. Furthermore, maintaining a set of social norms within federal
law is necessary to maintain a balance in society and within the status quo.
It is clear that practices such as polygamy do exist within society. Referencing the Model
Penal Code, however, polygamous practices do not conform to normative thought and are
criminalized. If DOMA should be overturned then law will require the government not only to
decriminalize the practice of polygamy but offer it the same federal advantages as homosexual
marriages. While it is also common for living situations to be comprised of roommates, a pair or
threesome of friends, either hetero or homosexual, the persons within these parties do not
federally benefit from these non-romantic relationships. Refusal to uphold DOMA would require
the further delegation of federal benefits to any non-committed co-inhabited relationship.
In a most recent decision handed down in the 5th circuit in the case of Oren Adar and
Mickey Ray Smith v. Darlene W. Smith, the state of Louisiana's refusal to list the two gay parents
of a Louisiana-born boy adopted in New York State was upheld. Although it was Louisiana state
practice to list the adoptive parents on new birth certificates, regardless of marital situation, the
state cited their law on banning same-sex marriage in order to uphold their decision. Under this
precedent, it can be argued that if it is rational for a state to confine the changing of birth
certificates to place the names of the adoptive parents to only opposite-sex couples, why then
isn’t it rational for the federal government to confine recognition to opposite-sex married couples
as well?
The Defense of Marriage Act is constitutionally defensible under the acceptance of these
stated arguments. Advocating a particular moral standard aside, above all the Act ensures to the
states that they and they alone have the authority to determine the eligibility requirements which
constitute a marriage. As reasoned in the conclusion of the Gill case, “the federal government
cannot, therefore, have a legitimate interest in disregarding those family status determinations
properly made by the states” (Gill, 32). If Section 3 of DOMA recognizes marriage as the union
between a man and woman, and it is under this precedent that a state establishes a law which
refuses to recognize the union of a sex-same couple, then it is the duty of the federal government
to honor the decision and definition of marital constitution.