Defense of Marriage Act

Although gay marriage had been controversial for some time, the issue came to a head in 1993 when the Hawaii Supreme Court ruled that the state could not discriminate against same-sex couples in its marriage laws without giving a good reason.

In response, conservative members of Congress pushed for the federal Defense of Marriage Act (DOMA), which became law in 1996. According to DOMA, the federal government respects only those marriages between a man and a woman. There are two parts to DOMA.

• First, the federal government cannot recognize state-sanctioned relationships between people of the same gender.
• Second, DOMA creates an exception to the long-standing rule that each state must respect all American marriages created outside its borders. Instead, DOMA allows states to refuse to recognize relationships between people of the same gender, even when those relationships were legally formed in another state.

On a practical level, this means that the legal marriage of a same-sex couple in one state (say, Massachusetts), does not have to be recognized by other states. It also means that same-sex married couples cannot take advantage of the more than 1,100 federal laws that confer rights, benefits, and protections to married heterosexual couples -- such as Social Security spousal survivor and retirement benefits, the ability to file joint tax returns, and qualification for special estate planning benefits.

As more states are recognizing same-sex marriage or creating domestic partnerships with marriage-like benefits, the interaction between DOMA and state laws creates confusion. For example, filing tax returns can be a conundrum for same-sex couples legally married in their resident state they can file joint state returns, but cannot file joint federal returns.  

Despite DOMA, the issue of gay marriage is far from static. Several pending lawsuits challenge the constitutionality of certain DOMA provisions. Gay rights advocates continue to fight for the repeal of DOMA and for recognition of gay marriage on the state level. On the flip side, although President Obama does not support DOMA, his administration continues to defend the law in court challenges. And, recently, conservative lawmakers have refloated the idea of a Federal Marriage Amendment to the Constitution, which would limit marriage in the United States to a man and a woman.

1 U.S.C. § 7

§ 7. Definition of marriage and spouse

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.

28 U.S.C. § 1738C

§ 1738C. Certain acts, records, and proceedings and the effect thereof

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 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 relationship.