Wording of the Defense of Marriage Act

DOMA has two sections, one defining “marriage” for purposes of federal law, and the other addressing federalism principles under the authority granted by Article IV, Section 1 of the Constitution, the Full Faith and Credit Clause.

The first section states that for purposes of federal law, marriage means a legal union between a man and a woman: 

“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.”

  The second section addresses the question of states recognizing same sex marriages from other states, and, as such, affects questions of federalism.

“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.”

Will Defense of Marriage Act Survive?

Since the April defeats for traditional marriage in the Iowa Supreme Court, the Vermont legislature, and the Washington, D.C., City Council, Americans in the other 48 states are quietly stress-testing their legal defenses against the spread of legalized same-sex marriage.

The Iowa ruling was particularly shocking. Not one of Iowa's seven supreme court justices, who were appointed by both Republican and Democratic governors over the past 15 years, could identify a valid public purpose for the institution that has guided our civilization for thousands of years.

Unlike the 30 states that added language to their state constitutions supporting the traditional definition of marriage, Iowa does not allow citizen initiatives to go directly to the ballot. The leaders of both houses of the state legislature have refused to allow their members to vote on a marriage amendment, so Iowans now have the difficult task of persuading legislators to bypass their own leaders in order to schedule a vote on a measure that polls show two-thirds of Iowans support.

However, a much more critical legal drama has begun in a federal court in Boston. The same law firm that brought gay marriage to Massachusetts is trying to overturn the federal law that protects the traditional definition of marriage in all federal departments, agencies and programs.

The federal Defense of Marriage Act (DOMA)--signed by President Bill Clinton in 1996 after an overwhelming bipartisan vote in the House (342-67) and Senate (85-14)--provides that federal laws must be interpreted in accord with the traditional definition of marriage as the union of husband and wife.

Five years ago, the Government Accountability Office (GAO) counted 1,138 federal laws that refer to marriage, spouse, husband or wife, and DOMA requires these laws to be administered uniformly throughout the nation. DOMA requires that even in states where same-sex unions are recognized, their partners are not recognized as married for purposes of federal law.

Same-sex partners cannot claim the privileges and benefits that Congress makes available to those who are married or widowed. For example, they cannot file joint income tax returns, receive Social Security benefits on their partner's wages, or obtain a green card for a partner from another country.

The anti-DOMA lawsuit claims it is discriminatory that same-sex couples who, they say, are legally married under state law, are not recognized as such by the U.S. government. But the federal government must consider the entire nation, including the 43 states whose laws declare that same-sex marriages from other states are not valid and may not be recognized for any purpose whatsoever.

If we didn't have a uniform federal definition of marriage, it wouldn't be long before every state had same-sex couples saying they were "married" in Massachusetts, Vermont or Iowa, and demanding that their "marriages" be recognized by those 1,138 federal laws, even after moving to a traditional marriage state.

If judges overrule Congress and the majority of the American people by striking down DOMA, it would be the same type of judicial supremacy that occurred 152 years ago in the famous Dred Scott case. The U.S. Supreme Court ruled that once a slave became "property" under the laws of a slave state, that legal status had to be maintained and respected even after the slave was taken to a free state, or even to a U.S. territory where slavery was specifically forbidden.

In his first campaign for the Illinois state senate in 1996, Barack Obama wrote: "I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages." On his first day as President, the White House website was updated to declare: "Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally recognized unions."

Will the Obama Justice Department do its duty and defend federal law?

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By Phyllis Schlafly

Mrs. Schlafly, a lawyer, is author of the newly revised and expanded Supremacists. She can be contacted by e-mail at phyllis@eagleforum.org.