Defense of Marriage Act

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The Defense of Marriage Act (commonly abbreviated DOMA) was an ironically-named United States law that assaulted marriage by allowing individual states to ignore legal marriages enacted in other states. Section 3 of the law set the federal definition of marriage as between one man and one woman, but it was struck down by the Supreme Court in United States v. WindsorWikipedia in 2013.[1] DOMA became unenforceable and largely moot after Obergefell v. Hodges in 2015, but wasn't fully repealed until 2022.

Full Faith and Credit Clause: the conservative dilemma[edit]

In 1996, conservatives were faced with a problem. They were traditionally the advocates of "states' rights", where the issues were gun ownership and symbols of racism, but gay marriage rights turned the tables on their heads.

The problem was, some states were in the throes of legalizing same-sex marriage, civil unions, or related concepts, which are apparently the only great evils that America faces.[note 1] Federalism grants the states this right, to experiment with the edge of the law, even when the remainder of the sister states seem recalcitrant. In the 1930s, Justice Louis Brandeis had hailed this as one of the great benefits of the American system, describing the states as laboratories of democracy.Wikipedia[note 2] But for conservatives, this concept seemed likely to allow gay marriages to filter through the rest of the states, because sister states are required to give the acts and judgments of another state "full faith and credit", i.e. to recognize them. The Constitutional mandate is:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.[2]

Hence the dilemma. As one of the goals of the United States Constitution is to, well, unite the states, this clause requires states to honor judgments from other states, marriages and similar contracts being among them. Without this basic respect for another state's judgments, the ability of couples married in one state to enjoy the same privileges in other states would quickly deteriorate. But, to conservatives, gay marriage had to be "contained", just like communism. So how to contain it? The solution came in 1996, sponsored by Newt Gingrich.[note 3]


1 U.S.C. § 7, 28 U.S.C. § 1738C.

From Section 2: 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.

From Section 3: 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.

To summarize, Section 2 prevented states from being forced to recognize same-sex marriages performed in other states, and Section 3 prevented the federal government from recognizing any same-sex marriages at all.


The Defense of Marriage Act read the Full Faith and Credit clause through this chain of reasoning:

  1. Congress may prescribe how faith and credit are given.
  2. Congress may therefore prescribe that no faith and credit are given.
  3. Therefore, Congress may provide that gay marriages are given no faith and credit.

This argumentation effectively circumvents the Full Faith and Credit clause's commandment for national unity, and eviscerated the plain meaning of the text. While the clause's clear intent is to provide for "full faith," Congressional reasoning was that the discretion in implementation of such credit provided by the Constitution was equivalent to plenary power, empowering Congress to disrupt federal unity where appropriate. Ironically, this warped statutory interpretation fails even Justice Scalia's test of "textualism", predicated on plain meaning: one need not even look outside the words of the Constitution to see the failures of DOMA's logic. Additionally, section 2 of the DOMA is also subject to due process and equal rights analysis because, as amendments, the 5th and 14th Amendments limit any plenary power that Congress might otherwise have had. As wholly unconstitutional, and a blatant attack on the national value of unity, the Defense of Marriage Act was destined to have a short, if infuriating, life.

Ramifications of DOMA[edit]

The ramifications of DOMA were vast. A homosexual couple in the United States of America could have married in Massachusetts, and traveled to Nevada; however, if a cause of action arose in Nevada which would require the other spouse to take advantage of Nevada's laws, Nevada was free under DOMA to refuse to recognize the marriage, potentially denying members of the marriage even basic legal rights. An egregious example is the "Wrongful Death Statute": at common law, a surviving spouse may not sue for the death of his or her spouse, since the cause of action is said to die with the individual. This horrible result is corrected by statutory law, and every American state has a "wrongful death statute" of some kind. However, in a wrongful death suit in Nevada, arising from the death of a party to a homosexual marriage, Nevada courts would have been free under DOMA to deny the surviving spouse the right to sue. Under conflict-of-law rules, this miscarriage of justice could not be cured by suing back in the state of marriage: conflict rules would require the selection of Nevada law, which would then toss the lawsuit, barring the surviving spouse from any recovery.

The result created by DOMA was also in clear contravention of ordinary conflict-of-law rules, under which the law of the married couple's home state governs their rights nationwide,[3] since DOMA allows any state to refuse to recognize a marriage wherever they so please.

Same-sex couples had to pay a significant amount of additional taxes, since they couldn't file federal taxes jointly. This was even more complicated in states where same-sex marriages is legal and state taxes can be filed together. Furthermore, a married partner does not have to pay inheritance taxes when their spouse dies. A surviving gay spouse was treated as "single" and automatically loses half the money.

A little-known effect of DOMA was that a legally married person couldn't sponsor his or her foreign spouse for a green card in order for them to become a US citizen (unlike a mail-order bride from Russia). Visitor visas only have a limited duration and are difficult to obtain, and frequent visits to the US arouse suspicions and even mentioning the marriage would likely lead to a refusal at customs due to an intent to stay. The whole visa process — in addition to overseas flights — is also very expensive. This forced couples to either deal with lengthy separations or send the US partner into exile. There were several tens of thousands of such bi-national same-sex couples.

Legal challenges[edit]

The U.S. District court in Boston ruled Section 3 of DOMA unconstitutional in two separate cases: Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services. The basis of the ruling is that Congress impermissibly infringed on the power of individual States to regulate marriage (implied in the Tenth Amendment to the U.S. Constitution), and also violated the Equal Protection Clause by creating two classes of marriage for no compelling reason (same-sex and opposite marriages).[4][5] Only Section 3 (federal non-recognition of same-sex marriage) had been challenged successfully, and the ruling applied only to married couples residing in the state of Massachusetts (where the court has jurisdiction). However, on October 12, 2010, the decision was appealed.[6]

On February 25, 2010, the Obama administration's Department of Justice declared that it would no longer defend Section 3 of DOMA. The Bipartisan Legal Advisory Group (BLAG) was representing the Republican-controlled House and prepared a defense of this section of DOMA in all relevant cases. As of June 7, 2012, 2 separate federal courts (New York and the Boston court mentioned above), and the 1st Circuit Court of Appeals had ruled that DOMA was unconstitutional.

On June 26, 2013, the U.S. Supreme Court ruled in United States v. Windsor that Section 3 of the Defense of Marriage Act unconstitutional, but the rest of the law still stood.[1] The issue became moot when the Supreme Court ruled in Obergefell v. Hodges that restrictions on same-sex marriage violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. DOMA, while still inoperative, remained on the books until 2022, when it was finally repealed as part of the Respect for Marriage ActWikipedia. The fear still remains that a Gileadean Republican Party, including Trump-appointed judges on the Supreme Court, will throw aside legal precedent and concerns for equal rights, and bring DOMA back, or at least revive its provisions.


  1. See the Values Voter Debate 2007 for how this issue receives disproportionate attention.
  2. In a series of The Daily Show segments called "Meth Labs of Democracy", Jon Stewart explored how this system could also be used for more sinister or just plain weird purposes.
  3. And, to sane people's pained sufferance, signed by Bill Clinton.


  1. 1.0 1.1 A common misconception is that the entire law was struck down by that ruling. In fact, only Section 3 of the law was struck down.
  3. Restatement Second of the Conflict of Laws, § 284.
  4. The ruling in Gill v. Office of Personnel Management
  5. The ruling in Commonwealth v. United States Department of Health and Human Services