Federal Defense of Marriage Act (DOMA)

15 March 2012

On 23 February 2011 President Obama issued a historic decision declaring his support for a heightened standard of review and said  that his adminstration would stop defending the "Defense of Marriage Act" in pending lawsuits challenging DOMA as unconstitutional.  Attorney General Eric Holder, Jr. confirmed that the Department of Justice will no longer defend the measure, which severely limits the potential of states to honor or carry out same-sex marriages, in court. 

The so-called "Defense of Marriage Act" (DOMA) passed by the House of Representatives and the Senate in 1996 was signed into law by President Bill Clinton under cover of darkness on September 21. DOMA does not ban marriages by same-sex couples, but it does bar federal recognition of those marriages once they become legal in any state. Therefore, married same-sex couples in Massachusetts don't have access to the 1,138 rights that a married couple receives under federal law.

• DOMA violates the Constitution's Full Faith and Credit clause that requires that official acts and proceedings of each state be recognized by other states. Congress does not have the constitutional power to decide when, or which, state acts get interstate respect or when people are stripped of those rights as they travel through the country.
• DOMA violates the constitutional principles of federalism, non-discrimination, and respect for lawful marriages and is, in the words of the New York Times, "constitution bashing."
• DOMA violates constitutional protections that forbid the Government from discriminating by creating second-class citizens and second-class marriages.
• DOMA gives Congress the power to punish disfavored marriages by denying them federal protections and benefits such as Social security, federal pensions for surviving spouses, and family unification in Immigration.
• DOMA violates the Tenth Amendment, which reserves the power for the states, by inserting the federal government for the first time in history into the definition of marriage.
• DOMA violates the Constitution's Full Faith and Credit clause that requires that official acts and proceedings of each state be recognized by other states. Congress does not have the constitutional power to decide when, or which, state acts get interstate respect or when people are stripped of those rights as they travel through the country.
• Lawsuits that are challenging DOMA