Defense of Marriage Act (DOMA)

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  3. Defense of Marriage Act (DOMA)

The Defense of Marriage Act (DOMA) is a law passed by Congress does two things. First, it provides that no State will be required to be affected by law of any other State with respect to a same-sex "marriage". Second, it defines the words "marriage" and "spouse" for purposes of Federal law. It was enacted by Congress in 1996. It defined marriage as being only between a man and a women. Prior to DOMA, federal law was agnostic towards marriage and states implemented marriages.

DOMA was in effect from 1996 through 2013. It specifically denied to same-sex couples all benefits and recognition given to opposite-sex couples. DOMA mandates that states banning same-sex marriage were not required to recognize same-sex marriages performed in other states and further made clear that, for the purposes of federal law, marriage could only occur only between a man and a woman. It was passed by Congress with overwhelming support in 1996 when Hawaii was believed to about to be the first state to allow same-sex marriage. It ensures that while the a couple may be married in Hawaii, they could not be recognized federally and other states could chose whether or not to recognize them.

Benefits thus denied to  include over 1,000 federal protection and privileges, such as:

  • Legal recognition of relationships
  • Access to a partner's employment benefits
  • Right to inherited property
  • Supplemental Security Income, Medicaid
  • Joint tax returns, which financially incentivize marriage
  • Joint filing of bankruptcy
  • Joint parenting rights, such as access to children's school records
  • Spousal privilege in court cases: marital confidence privilege, and a spouse cannot be compelled to testify against their partner
  • Tax exemptions and tax credits (also financially incentivizing marriage)
  • Immigration or residency for non-citizen spouses
  • Ability to sponsor wife/husband for immigration benefits
  • Next-of-kin status for emergency medical decisions or filing wrongful death lawsuits
  • Protections from domestic violence
  • Right to live together in college housing and military housing
  • Preferential hiring for spouses of veterans in government jobs
  • Tax-free transfer of property between spouses (including on death) and exemption from "due-on-sale" clauses.
  • Threats against spouses of various federal employees is a federal crime
  • Funeral and bereavement leave from work
  • Making spousal medical decisions
  • Right to change surname upon marriage
  • Special consideration to spouses of citizens and resident aliens

... among many others.

DOMA effectively repealed through the courts. In hearing the case of United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional, violating the Due Process Clause of the Constitution (prohibits the government from depriving “any person of life, liberty, or property, without due process of law.”). This had the effect of requiring the federal government to recognize same-sex marriages conducted by the states. In Obergefell v. Hodges (2015), the Supreme Court held that same-sex marriage was a fundamental right protected by both the Due Process Clause and the Equal Protection Clause (“nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws in the Constitution”) of the US Constitution. The ruling requires all states to perform and recognize the marriages of same-sex couples, leaving Section 2 of DOMA as superseded and unenforceable.

Same-sex marriage effectively became the law of the land in 2015, originating from the Constitution.


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