The Defense of Marriage Act (DOMA) and the Call for a Constitutional Amendment

The Supreme Court overruled it on June 26, 2015, by the decision in Obergefell v. Hodges. This ruling cited the 14th Amendment's equal protection clause. It concluded that denial of marriage rights to same-sex couples is unconstitutional.

Two years before, in 2013, in U.S. v. Windsor, the Supreme Court found key provisions of the Defense of Marriage Act (DOMA) unconstitutional. This meant married gay and lesbian couples living in states that allowed same-sex marriage before the Court ruling were entitled to the same federal benefits and protections extended to married heterosexual couples. The Court didn't invalidate state bans on same-sex marriage until Obergefell. Instead, it decided that the U.S. must recognize state-sanctioned same-sex marriages. Below is a look at how the Defense of Marriage Act came about. We will also look at its legal effects before the Supreme Court's rulings in Windsor (2013) and Obergefell (2015).

Hawaii's Struggle Over Same-Sex Marriage: A Precursor to the Federal Statute

In 1990, three same-sex couples filed suit in Hawaii, challenging the ban on same-sex marriage as a civil rights violation. The couples met all conditions for a marriage license in Hawaii except the rule that they be of the opposite sex. Denied the license in the lower courts, they appealed to the Hawaii Supreme Court. In Baehr v. Lewin (1993), the Hawaii Supreme Court ruled that the state constitution did not provide a right to same-sex marriage. But that not granting a marriage license appeared to violate the state's equal protection clause. The Court reasoned that denying the license based on the parties' not being persons of the opposite sex equated to discrimination based on sex. It remanded the case. It instructed the lower court to determine if the State could show a compelling reason to uphold the discrimination.

The Baehr decision mobilized opponents of same-sex marriages, who feared that gay marriage would soon be legal in Hawaii. Opponents expressed concern that other states would recognize same-sex unions from Hawaii under the U.S. Constitution's Full Faith and Credit Clause. Yet some disagreed. They questioned the impact Hawaii's support of gay marriage would have on other states' anti-gay marriage laws. Still, anti-gay marriage legislation proceeded on the state and federal levels.

Voters in Hawaii adopted a constitutional amendment allowing legislators to ban same-sex marriages. This made the state's equal protection law no longer applicable. In late 1999, the Hawaiian Supreme Court determined this new ban was effective. It refused to recognize same-sex marriages in the state.

The movement for gay rights did gain ground in various states as the years progressed. By 2015, the majority of states had approved recognition of same-sex marriages. But some 13 remaining states prohibited gay marriage.

Laws and court decisions addressing same-sex marriage were limited to the states, with one key exception: the Defense of Marriage Act.

DOMA's Legal Effects

In 1996, in response to the Baehr decision, the U.S. Congress passed DOMA, and President Bill Clinton signed it into law. The act was designed to prevent the Full Faith and Credit Clause from being applied to states that prohibited same-sex marriages. DOMA stated in part that "No state, territory or possession of the United States ... 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 a relationship."

The enactment of DOMA did not ban same-sex marriages in itself, and neither did it force any state to ban them. DOMA represented an effort to protect the institution of marriage and limit it to opposite-sex couples. Under DOMA, the federal government announced the definition of marriage under federal law. It defined marriage as a union between a man and a woman only. It specifically denied federal benefits to spouses of same-sex marriages. The act states that any federal law that applies to married couples does not apply to same-sex couples. Statutory and administrative use of terms such as "marriage" and "spouse" under federal law only applied to heterosexual couples. As a result, certain protections in inheritance rights, health care coverage, and tax law would not be available to same-sex couples.

The Call for a Constitutional Amendment

In February 2004, President George W. Bush called for a constitutional amendment to ban same-sex marriage nationwide. The president said that DOMA was vulnerable to attack under the Full Faith and Credit Clause. Many commentators shared the sentiment. They were concerned about the response from the federal judiciary. Bush said the only way to ensure DOMA would not be struck down by "activist courts" was through an amendment to the U.S. Constitution. A constitutional amendment would "protect marriage while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage." Supporters proposed a constitutional amendment in Congress, but no vote had taken place.

In late 2003, the Massachusetts Supreme Court held that state law denying marriage to same-sex couples was unconstitutional. The court legalized gay marriage.

In San Francisco, local officials also authorized same-sex marriages. This began a see-saw of California court rulings and voter initiatives on the legality of gay marriage. In 2008, the California Supreme Court overturned the ban on same-sex marriage. It declared that marriage is a fundamental right that cannot be denied based on sexual orientation. Later that year, opponents of gay marriage succeeded in passing a voter referendum called Proposition 8. Proposition 8 once again banned same-sex marriage. This led to renewed efforts to pass a domestic partnership law. Passage of the domestic partnership law gave state recognition to civil unions between same-sex partners.

After events in Massachusetts and San Francisco, Bush urged support for a federal marriage amendment. An amendment to the U.S. Constitution must receive a two-thirds vote from the House of Representatives and the Senate. Then three-fourths of states must ratify it. By 2006, the marriage amendment stalled in Congress. It had not reached the necessary majority in the House or the Senate.

Efforts for Marriage Equality Gain Support

When DOMA became law, many debated whether it would withstand challenges in the federal courts. In 2012, President Barack Obama and Vice President Joe Biden signaled a change in view. They stated they now supported gay marriage efforts as an issue of equal rights.

Plaintiffs in New York claimed DOMA prevented a surviving spouse's use of the federal estate tax exemption from a gay marriage. They challenged the law as a violation of civil rights. The U.S. Department of Justice agreed the law was unconstitutional. It refused to defend the provisions of DOMA at issue in court. The congressional Bipartisan Legal Advisory Group then defended the law. The government lost in the lower courts. On appeal, the U.S. Supreme Court upheld the lower courts' rulings in United States v. Windsor (2013). The Court held that DOMA imposed inequality between same-sex and opposite-sex couples. That meant it was in violation of due process and equal protection.

By 2012, the federal Ninth Circuit Appellate Court ruled that California's Proposition 8 was unconstitutional. Efforts to involve the U.S. Supreme Coter failed when the Court denied standing to the opponents in a decision issued the same day as Windsor in 2013.

Two years later, in Obergefell v. Hodges (2015), the same majority in the Windsor case overturned DOMA outright. The Court concluded the right to marry is a fundamental constitutional right. It applied with equal force to same-sex couples. The Supreme Court found that state bans on gay marriage violated the Equal Protection Clause and the Due Process Clause of the 14th Amendment of the U.S. Constitution.

Obergefell involved a consolidation of several cases from the Sixth Circuit jurisdiction. In the titled case, plaintiff James Obergefell and his partner had legally married in Maryland. As his partner was terminally ill, Obergefell sought that Ohio name him as a surviving spouse on the death certificate. Ohio had not recognized the right of same-sex couples to marry. The federal district court judge granted the motion. The court stopped the registrar from filing a death certificate without listing Obergefell as the spouse. The Supreme Court upheld these actions and legalized same-sex marriage in all 50 states.

In 2022, a bipartisan congressional majority passed the Respect for Marriage Act. Biden signed it into law. The act provides federal statutory authority for the first time for Americans in same-sex and biracial marriages. It modified prior law that defined marriage as only occurring between members of the opposite sex. It did not legally recognize any marriage involving more than two persons.

The Respect for Marriage Act codified the holdings in Windsor and Obergefell, acting as a repeal of DOMA. It required states to provide full faith and credit to out-of-state marriages. It prohibited discrimination based on race, sex, ethnicity, or national origin. It stated it did not affect religious liberty rights under the U.S. Constitution or federal law. It likewise did not mandate religious groups to provide goods or services in formal recognition of any marriage.

Get Legal Help With Same-Sex Marriage Issues

The history of same-sex marriage illustrates how drastically federal and state laws can change. These changes coincided with greater public acceptance of gay marriage. Although same-sex marriage is now legal, marriage laws may have derivative effects. This may give rise to future legal disputes.

Stay current with the law. If you have questions for yourself or a family member, speak with an experienced family law attorney.