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DOMA and LGBT Commemorative Month

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Generally when researchers visit the Law Library Reading Room with questions about marriage laws, I refer them to the relevant state code.  The laws governing the contracting of a marriage or its dissolution are legislated by the state and usually in a chapter of the state code entitled “Domestic Relations.”  However, in certain circumstances, the federal government will enter the arena of marital law.  Sometimes it can take the form of a judicial intervention, as in Loving v. Virginia, in which the Supreme Court of the United States prohibited states from restricting interracial marriages.  In other instances, Congress may pass legislation which defines or affects marriage.   The 1996 Defense of Marriage Act, Pub. L. 104-199,  is an example of a law in which the Federal government recognized states’ rights to define marriage within their borders, but which limits the obligation of other states to accept those marriages as well, defining marriage with regard to federal benefits.

The Defense of Marriage Act (DOMA) is a surprisingly short law—just barely over a page in length and only three sections.  As with many modern laws, it modifies in part existing legislation and it is helpful to have a copy of the United States Code in hand when reading it.  After the first section, which gives the short title of the law, section two begins: ” In General.–Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following …”  Title 28 of the U.S. Code covers the Judiciary and Judicial Procedure.  Section 1738, which is entitled “State and Territorial statutes and judicial proceedings; full faith and credit,” decrees that the laws and court proceedings that have been properly authenticated in one state or territory will be recognized in all the states.  However, Section 1738C, which was added by DOMA, makes an exception to that principle.  This section legislates that no state shall be required “to give effect to any public act, record, or judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage … or a right or claim arising from such relationship.”

Section 3 of DOMA provides a definition of marriage, as well as the meaning of the word “spouse” as applied in all federal laws and regulations.  Marriage is defined as “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.”  In 1997, shortly after the passage of this law, the General Accounting Office, now the Government Accountability Office identified 1,049 instances in the U.S. Code where marital status was at issue for benefits or rights.  By January 2004, GAO found 1,138 instances where marital status was involved in the application of Federal statutory law.

In the first decade of this century, sections two and three of DOMA have been challenged on numerous occasions in various courts, including U.S. District Court, U.S. Bankruptcy Court and in the U.S. Court of Appeals for Veterans Claims.  Section 3, which defined marriage under federal law, was defended by the U.S. Attorney General’s Office until February 2011, when Attorney General Eric Holder issued a statement that his office would cease to defend section 3 of DOMA in pending lawsuits.  However, this statement also made clear that until United States Congress repeals this law or it is struck down by the  Supreme Court, the government would continue to enforce the law.  This would mean that in cases where benefits, rights or privileges accrued to a married couple or a spouse would continue to apply only in action to opposite-sex couples.  The decision to stop defending the law was triggered in part by two cases in the United States Court of Appeals for the Second Circuit.  The second of these two cases, Windsor v. United States, was heard before the U.S. Supreme Court on March 27, 2013—the day after arguments were heard in Hollingsworth v. Perry, which challenged the constitutionality of California’s 2008 Proposition 8 ballot initiative, a state constitutional amendment restricting marriage to opposite-sex couples.

As Mr. Holder pointed out in his statement on ceasing to defend DOMA, much has changed in the legal landscape since this law was originally passed.  In addition to the various court cases, President Obama has established June as Lesbian, Gay, Bisexual and Transgender Pride Month by Presidential Proclamation.  Significantly, in his Proclamations, the President has emphasized the principle that all people are created equal and all are entitled to the same rights, privileges and opportunities, which includes the right to marriage, freedom from discrimination in employment and housing, and protection against hate crimes. 

Defense of Marriage Act, Pub. L. 104-1999, page 1

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