The End of a Bad Era: Congress Repeals the Defense of Marriage Act

Contributing sentiments towards policy:

57% : In response, four-fifths of the states passed so-called mini-statutes or constitutional amendments banning both the celebration and recognition of same-sex marriages.
57% : The Court thus held "that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."
57% : Finally, the RMA adds a provision on "religious liberty and conscience."
56% : DOMA was a reactionary response to the first real possibility of legal same-sex marriage in the United States.
56% : DOMA only became relevant -- and problematic -- when the first same-sex marriages were celebrated in the U.S.
55% : Evan Wolfson, a strong proponent, argued that many same-sex couples "in and out of Hawaii" would take advantage of such a "landmark victory"; and the "great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal nationwide recognition of their marriage unions."
54% : Both opponents and proponents of same-sex marriage assumed that if Hawaii legalized same-sex marriage, then couples from all over the country would marry there and then seek recognition of their marriages at home.
54% : The first provision of the RMA states that "no union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family," and that "millions of people, including interracial and same-sex couples, have entered into marriages and have enjoyed the rights and privileges associated with marriage."
52% : DOMA and Interstate Recognition of Same-Sex Marriages
52% : By virtue of a 2003 ruling of the state's highest court, in Goodridge v. Department of Public Health, Massachusetts began issuing marriage licenses to same-sex couples in May 2004.
52% : The Court had the opportunity in a related case during the same term (Hollingsworth v. Perry) to invalidate laws banning the celebration of same-sex marriages also but didn't do so.
51% : The litigation in Hawaii thrust the central question into the national spotlight: Should same-sex couples be allowed to marry?
51% : As Kennedy concluded the analysis, "DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages.
50% : Constitutional Protection for the Right of Same-Sex Couples to MarryThe unprecedented nature of DOMA ultimately led to its constitutional downfall.
50% : Public opinion had also shifted dramatically by that point, with more than half of survey respondents supporting marriage equality.
50% : Planning for a Post-Obergefell WorldUnder Windsor and Obergefell, same-sex couples have the right to marry in every state and the right to have those marriages given effect by other states and by the federal government as long as they are validly formed in the first instance.
49% : Section Two of the Act purported to give states the right to refuse recognition to same-sex marriages that have been celebrated in other states.
49% :DOMA became at least tangentially relevant in the United States in 2001, when the first same-sex marriages were legally celebrated in foreign jurisdictions like Canada.
49% : This provision also deprived legally married same-sex couples of important rights, such as Social Security benefits, estate tax exemptions, marriage-based immigration rights, and so on.
49% : By the time the Court heard this case, thirteen states permitted same-sex couples to marry (and thirty percent of the American population lived in one of those states).
49% : But two years later, the Supreme Court held in Obergefell v. Hodges that same-sex couples were constitutionally entitled to marry in every state and on the same terms as different-sex couples.
48% : DOMA and Federal-Law Recognition of Same-Sex MarriagesSection Three of DOMA became relevant, however, as states began to legalize same-sex marriage.
48% : In 2013, the Supreme Court held in United States v. Windsor that the federal-law provision ran afoul of the equal protection principles guaranteed by the Fifth Amendment (parallel to the Equal Protection Clause that applies to the states through the Fourteenth Amendment).
48% : The RMA does not require states to allow same-sex couples to marry; it only requires that they give effect to valid marriages contracted elsewhere.
48% : Under Obergefell, every state must allow them to marry on the same terms as different-sex couples, but if Obergefell were to go the way of Roe, this law would mean same-sex couples could always marry somewhere and have that marriage given effect everywhere.
47% : As a technical matter, this provision DOMA amended the federal Full Faith and Credit Act (28 U.S.C. § 1738) to provide that states need not grant "full faith and credit" to same-sex marriages.
47% : First, it repeals Section Two of DOMA, which had provided that states did not need to extend full faith and credit to same-sex marriages from other states.
46% : But despite the potential for a conflict with DOMA, there were no court cases at this stage challenging any state's refusal -- or the federal government's refusal -- to give effect to same-sex marriages legally celebrated in a foreign jurisdiction.
46% : The widow lived in New York, which had legalized same-sex marriage by then and also recognized same-sex marriages validly celebrated elsewhere.
46% :After Windsor, the federal government began to treat same-sex marriages the same as any other marriage, making Section Three of DOMA a dead letter.
45% : Prior to 1996, there basically was no law regarding same-sex marriage anywhere in the United States.
45% : And it also raised a related question: If Hawaii were to allow same-sex marriage, would that effectively mean that such marriages would be thrust upon every state?
45% : Congress decided to "defend" traditional marriage by allowing states to avoid compelled recognition of same-sex marriages celebrated in other states; and by allowing the federal government to ignore same-sex marriages celebrated in any American state, or anywhere abroad.
45% : Hawaii did not legalize marriage by same-sex couples until 2013 -- almost two decades after the court ruling that spurred DOMA and its state-level counterparts.
45% : Rather than providing that same-sex marriages cannot be recognized for any federal-law purpose, it now states that any marriage that is valid in the state where it was created will be recognized "for the purposes of any Federal law, rule, or regulation in which marital status is a factor."
44% : And, indeed, among the hundreds of cases about same-sex marriage litigated between 1996 and 2015, not a single one involved the application of this provision.
43% : But even with the legalization of same-sex marriage in Massachusetts, Section Two of DOMA had no meaning.
43% : With DOMA, the "avowed purpose and practical effect" are to "impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States."
42% : In 1996, Hawaii was on the verge of legalizing same-sex marriage after the state's highest court had ruled, in Baehr v. Lewin (2003), that banning same-sex marriage is a form of sex discrimination -- for men were allowed to marry women, but women were not allowed to marry women -- that merited the highest level of judicial scrutiny.
41% : Several lawsuits were brought in the 1970s to test the proposition that silence on gender meant that same-sex couples already had the right to marry -- and that a contrary interpretation of the marriage licensing statutes would violate the federal or state constitutions on due process or equal protection grounds.
41% : While Baehr was pending on remand, Hawaii voters amended the state constitution by referendum to give the legislature the power to ban same-sex marriage, which it did (and then reversed itself in 2013).
41% : Under the general conflict of laws principles, states can prefer their own law -- including their law denying same-sex marriage -- over the competing choice of another state -- one allowing same-sex marriage -- as long as the choice is "neither arbitrary nor fundamentally unfair."
41% : This provision said that regardless of their validity under state law, same-sex marriages could not be recognized for any federal law purpose.
40% : It did these things at a time when same-sex couples could not legally marry anywhere in the United States -- and indeed would not be able to for another eight years.
40% : The courts who heard these cases ruled unanimously that silence meant exclusion, as the legislative intent from decades or even centuries in the past could not be understood to embrace a type of marriage never contemplated; and, just as unanimously, they refused to seriously engage with the possibility that exclusion of same-sex couples from the right to marriage presented any kind of a constitutional problem.
39% : It was widely predicted that the State of Hawaii would lose the case on remand because it would be unable to show that it had a compelling reason for engaging in this type of discrimination and that the state's existing ban on same-sex marriage would be held unconstitutional under the Hawaii constitution.
39% : Because of the nature of the interaction between federal and state law where marital status is relevant, this imposed a variety of completely senseless bureaucratic hassles on same-sex couples as well as significant substantive hardship in some cases.
39% :Windsor arose when the widow of a same-sex spouse, who had been married in Canada, sought (and won) a refund of estate taxes that would not have been owed had the federal government given effect to the couple's same-sex marriage.
37% :Hawaii loomed large in the growing national controversy over same-sex marriage.
36% : And once the Supreme Court held in Obergefell v. Hodges (2015) that it is unconstitutional to deny same-sex couples the right to marry, the question of interstate recognition became irrelevant (for now, see below) as well.
35% : In this column, I'll explain the history of the Defense of Marriage Act, its odd place in the national controversy over same-sex marriage, and the changes effectuated by the Respect for Marriage Act.

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