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Defense of Marriage Act (DOMA)

Louise D.

The Defense of Marriage Act (DOMA) is a law that existed in the US up until 2015. It was known to be controversial due to how it defined marriage and spouses. The law made it basically impossible for same-sex couples to get legally married and also precluded any federal benefits for married same-sex couples. Republicans primarily supported the law at the time. Still, it was eventually declared unconstitutional following two separate court cases that ultimately had the supreme court ruling in favor of same-sex couples.

The Defense of Marriage Act (DOMA) passed Congress in 1996. President Bill Clinton signed it into law. Initially, it defined the act of marriage as being “only a legal union between one man and one woman”, thus making it easy for states to deny recognition of same-sex marriages.

The wording of the act basically says that the word ‘marriage’ means a union between a man and a woman and leaves no room for anything else. It further states that the term ‘spouse’ refers to a husband or wife of the opposite sex. Thus suggesting that there is no such thing as a same-sex spouse. Same-sex marriage, therefore, had very little hope of ever being legally recognized.

The only small hope at legal recognition was if the individual state laws allowed for same-sex marriage, and even then, there would be no sway in federal laws. Ultimately, this meant that the federal government had no obligation; in fact, they could not, even if they wanted to, offer federal support or to same-sex spouses. Under these federal laws, the federal government could not recognize same-sex marriage at all.

Taking A Closer Look

The first individual state to recognize same-sex marriage was Massachusetts in 2003. By 2008 two other states followed.

The supreme court rulings on two specific high-profile cases have essentially voided most of the Defense of Marriage Act as it stands today.

Although the current state of same-sex marriage laws in the US is still not ideal, the downfall of the Defense of Marriage Act will have effects on families with same-sex couples concerning their access to federal rights providing marital benefits, including military personnel benefits, social security benefits, tax changes, healthcare benefits, and hospital visitation rights. It was definitely a step in the right direction to have it ruled unconstitutional and to state expressly that married couples of the same sex are indeed legally married.

Section 2 of DOMA

This section specifically stated that no state or territory could be forced to recognize the marriage rights of a same-sex couple.

Furthermore, the Defense of Marriage Act stated that individual states do not need to recognize same-sex marriages of couples who were married in other states. This applies to Section 2, which states that individual states and territories can deny recognition of a marriage that originated elsewhere.

So, if a same-sex marriage license was signed in Massachusetts, but the couple moved to Tennessee, the state did not view the couple as legally married.

Section 3 of DOMA

Provided a definition of the words ‘marriage’ and ‘spouse’ that specifically ascribed to heterosexual unions between opposite-sex spouses, even stating that a spouse can only refer to someone of the opposite sex.

Recently, Section 3 of DOMA was ruled unconstitutional. This part of the Defense of Marriage Act stops the federal government from recognizing same-sex marriages for federal law or programs. Regardless of whether the marriage is legal in that state or not.

That means that same-sex marriage can now be officially recognized for federal purposes, and since Section 2 is also voided, the state in which the couple resides is irrelevant.

Defense Of Marriage Act

Same Sex Marriage and Federal Law

It started with a lawsuit filed in New York by Edith Windsor. Upon the death of her wife, she was forced to pay a significantly large amount of estate taxes because federal law did not recognize same-sex marriages. This was, at the time, in line with section 3 of DOMA, which denied same-sex married couples any federal benefits.

Lower courts ruled in her favor, but the United States refused to comply, resulting in the appearance of the case in the Supreme Court.

Essentially, DOMA’s definition of marriage denied same-sex couples federal benefits and other rudimentary rights that married heterosexual couples enjoyed, sometimes despite having a legal marriage license.

Bush Administration

The Bush administration, and therefore President Bush, found the Defense of Marriage Act to be valuable and was supportive thereof.

Obama Administration

The Obama administration was less supportive of the Defense of Marriage Act, especially section 3 of DOMA, and indicated that it was unconstitutional. Still, until it could be legally overturned in some way, they would have to enforce the law.

Supreme Court Decision

The Supreme Court ruled in favor of Edith Windsor. Thus declaring Section 3 of DOMA unconstitutional, which had a significant and widespread impact on the lives of same-sex couples and the rest of the LGBT+ community.

Marriage Equality

The Supreme Court decision enables married same-sex couples who were married in a state where same-sex marriages are legal to claim marriage equality, which they were previously unable to do. The Supreme Court decision was based on the fact that section 3 of DOMA violated the equal protection promise that was stipulated in the constitution. This would include things like estate taxes, social security benefits, housing allowances, and various other spousal benefits.

Legal Arguments Against Same Sex Marriages

Although there are a great many arguments against same-sex marriages, there seem to be two arguments that come up more often than others.


The first of these is founded on a religious basis. Many people, and their churches, draw attention to religious texts defining marriage as something that exists between a man and a woman. Although this definition is hotly debated, even by cisgender heterosexual individuals, it seems to have survived into the modern age.

The religious foundation also seems to be the reason that legislation like the Equality Act keeps failing. Many believe that the plight of equal protection for the LGBTQ+ community negatively impacts the right to freedom of speech among more conservative religious communities. One has to wonder as to the fairness of such an argument, yet it prevails pretty securely.

There is a considerable push to protect the so-called right to freedom of speech that, should legislation like the Equality Act be passed as federal laws, would essentially become illegal.

Such strong oppositions seem to extend into the realm of the Defense of Marriage Act.


Another argument that prevails is the argument that same-sex partners cannot procreate. This argument is a frustrating one, as it often fails to address two essential questions:

  1. What about infertile heterosexual couples? Should they not also be denied the right to marry by this logic?
  2. What about out-of-wedlock pregnancies?

One can further question the wisdom of this argument by posing inquiries around adoption among same-sex spouses. If the goal is to raise a child in a stable environment with two married parents, then why are same-sex couples allowed to adopt children but not to marry? And furthermore, is it being suggested that same-sex married couples would somehow present a less stable environment than their heterosexual counterparts? Not to mention questions about abusive heterosexual family environments.

The argument often extends to include the instability of the existing institution of marriage and the concern that extending privileges to same-sex couples would destabilize it even more. However, this, too, appears to be an incomplete argument as one should ask what kind of guarantee can be given that it would make things worse as opposed to possibly making things better?

To date, the 2015 ruling of the Supreme Court that banned same-sex marriages as unconstitutional was arguably the most significant breakthrough on the topic. Managing to overturn DOMA in public law was a massive breakthrough for same-sex marriage rights.

Defense Of Marriage Act

State Laws on Same Sex Marriage

The supreme court decision on Obergefell v. Hodges now means that all states must recognize same-sex marriages. This was the last nail in the coffin to mark DOMA unconstitutional in the eyes of the law. This meant that states that had not legalized same-sex marriage now had to oblige with laws in other states that recognize same-sex marriage.

But up until that ruling, this was the division between state laws recognizing same-sex marriages and those that did not.

Same Sex Marriage was Legal

  • Massachusetts (2003)
  • California (2008)
  • Connecticut – (2008)
  • Iowa – (2009)
  • Vermont – (2009)
  • New Hampshire – (2009)
  • New York – (2011)
  • Maine – (2012)
  • Maryland – (2012)
  • Washington – (2012)
  • Rhode Island – (2013)
  • Delaware – (2013)
  • Minnesota – (2013)
  • New Jersey – (2013)
  • Hawaii – (2013)
  • Illinois – (2013)
  • New Mexico – (2013)
  • Oregon – (2014)
  • Pennsylvania – (2014)
  • Utah – (2014)
  • Colorado – (2014)
  • Oklahoma – (2014)
  • Virginia – (2014)
  • Florida – (2014)
  • Indiana – (2014)
  • Wisconsin – (2014)
  • Idaho – (2014)
  • Nevada – (2014)
  • West Virginia – (2014)
  • North Carolina – (2014)
  • Alaska – (2014)
  • Arizona – (2014)
  • Wyoming – (2014)
  • South Carolina – (2014)
  • Kansas – (2014)
  • Montana – (2014)
  • Washington – (2014)

Marriage was Only Legal for Opposite Sex Couples

  • Alabama
  • Arkansas
  • Georgia
  • Kentucky
  • Louisiana
  • Michigan
  • Missouri
  • Mississippi
  • Nebraska
  • North Dakota
  • Ohio
  • South Dakota
  • Tennessee
  • Texas

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