DOMA, Marriage Equality, and the Push for a Constitutional Amendment
How the Defense of Marriage Act shaped federal marriage law, triggered constitutional debates, and led to nationwide marriage equality.
The Defense of Marriage Act (DOMA)
Background: Marriage, Federal Law, and Why DOMA Mattered
Historically, marriage in the United States was regulated primarily by states, with each state determining who could marry and under what conditions. For much of U.S. history, those state laws recognized only opposite-sex couples and were often intertwined with religious and cultural views of marriage.
When states began to consider or recognize same-sex marriages and domestic partnerships, questions emerged about how those relationships would be treated under federal law. Federal statutes rely heavily on marital status to allocate rights and benefits, including:
- Tax filing status and related exemptions
- Social Security survivor and spousal benefits
- Immigration and residency rights for noncitizen spouses
- Access to employer-sponsored health insurance and retirement plans
- Next-of-kin status for medical decision-making and inheritance
DOMA emerged in this context, as Congress sought to control how marriage—especially same-sex marriage—would be treated for federal purposes and across state lines.
The Core Provisions of the Defense of Marriage Act
DOMA contained two major components that reshaped the legal definition and recognition of marriage.
| DOMA Provision | What It Did |
|---|---|
| Section 2 | Allowed states to refuse to recognize same-sex marriages performed in other states, effectively creating a carve-out from the usual expectation that states honor each other’s marriage laws. |
| Section 3 | Defined “marriage” for all federal law purposes as a legal union between one man and one woman, and “spouse” as an opposite-sex partner, denying federal marital benefits to same-sex couples. |
By codifying these rules, DOMA ensured that even couples legally married under state law would be treated as unmarried strangers by the federal government, with significant practical consequences.
Practical Impact: Rights and Benefits Denied Under DOMA
For same-sex couples, the effect of DOMA was wide-ranging, touching more than a thousand discrete federal provisions that rely on marital status.
- Taxation: Couples could not file joint federal tax returns, potentially leading to higher tax burdens and loss of marital deductions.
- Social Security and Retirement: Spousal and survivor benefits, as well as recognition of marital status in pension and retirement systems, were denied.
- Immigration: U.S. citizens could not sponsor a same-sex spouse for lawful permanent residency, even when the marriage was valid under state law.
- Employment Benefits: Federal employees could not extend health insurance or other benefits to same-sex spouses; similar issues arose in private plans governed by federal law.
- Family and Next-of-Kin Status: Laws that recognized spouses for hospital visitation, inheritance, and domestic violence protections often did not apply at the federal level.
These disparities created a two-tier system: opposite-sex couples enjoyed full recognition and benefits from both state and federal governments, while same-sex couples had, at best, partial recognition depending on where they lived and which level of government was involved.
The Political Response: Calls for a Constitutional Marriage Amendment
After DOMA’s enactment, some advocates argued that statutory protections would not be enough to preserve a traditional, opposite-sex definition of marriage. They promoted the idea of a Federal Marriage Amendment, which would embed a restrictive definition of marriage directly in the U.S. Constitution.
This push for an amendment rested on several claims:
- A belief that courts might eventually strike down DOMA as unconstitutional, leaving Congress’s definition vulnerable.
- Concern that state-level developments—such as recognition of same-sex marriage or civil unions—would spread and become normalized.
- A desire to prevent both Congress and the Supreme Court from expanding marriage rights by locking the definition into constitutional text.
Supporters framed the amendment as necessary to “defend” marriage and protect religious or moral views about family structure. Opponents countered that such an amendment would, for the first time, embed explicit discrimination against a particular group into the Constitution, undermining principles of equal protection and liberty.
Legal Challenges and the Road to United States v. Windsor
DOMA soon faced litigation from couples and surviving spouses who were denied federal benefits despite being legally married under state law. One of the most consequential cases was United States v. Windsor, involving a surviving spouse who was assessed a large federal estate tax bill because her same-sex marriage was not recognized.
The Windsor case raised constitutional arguments under the Fifth Amendment, focusing on:
- Equal protection principles: Whether DOMA treated similarly situated couples differently without a legitimate governmental justification.
- Liberty interests: Whether the federal government’s refusal to recognize state-sanctioned marriages infringed on personal dignity and autonomy.
- Federalism concerns: Whether Congress had overstepped by imposing its own definition of marriage on states traditionally responsible for marriage law.
On June 26, 2013, the Supreme Court struck down DOMA’s Section 3, holding that the federal government could not deny recognition to lawful same-sex marriages for purposes of federal benefits. The Court emphasized that DOMA’s effect was to “disparage and injure” couples whom states had chosen to protect and recognize, finding no sufficient justification to override constitutional guarantees of liberty.
Beyond Windsor: Obergefell v. Hodges and Nationwide Marriage Equality
Although Windsor addressed federal recognition, it did not immediately require all states to allow or recognize same-sex marriage. Many states continued to ban such marriages or refused to recognize them when performed elsewhere.
Further litigation culminated in the Supreme Court’s 2015 decision in Obergefell v. Hodges, which addressed both the right to marry and recognition across state lines. The Court held that same-sex couples have a constitutional right to marry and to have those marriages recognized in every state, grounded in the Fourteenth Amendment’s guarantees of due process and equal protection.
Obergefell had two major effects:
- States could no longer bar same-sex couples from marrying.
- States were required to recognize same-sex marriages performed in other jurisdictions.
This decision effectively neutralized DOMA’s Section 2, which had allowed states to deny recognition to out-of-state same-sex marriages.
The Respect for Marriage Act: Repealing DOMA and Securing Recognition
More than a quarter-century after DOMA’s passage, Congress enacted the Respect for Marriage Act, formally repealing DOMA and providing statutory protections for marriage recognition.
The Respect for Marriage Act:
- Repealed DOMA’s federal definition of marriage and its provisions authorizing states to deny recognition of same-sex marriages.
- Required the federal government to recognize any marriage valid in the state where it was performed, regardless of the sex or race of the spouses.
- Obligated states to recognize lawful same-sex and interracial marriages from other states.
By codifying these protections, Congress created a legislative backstop for marriage rights, intended to function even if future Supreme Court decisions were to narrow or reinterpret constitutional protections recognized in Obergefell.
DOMA and the Amendment Debate: Key Arguments For and Against
The controversy around DOMA and the proposed constitutional amendment exposed deep divisions over how marriage should be defined and who should decide its meaning. Common arguments included:
Arguments Supporting DOMA and a Marriage Amendment
- Preserving traditional marriage: Advocates argued that opposite-sex marriage as the norm supported child-rearing and social stability.
- Protecting state autonomy: Supporters maintained that states should not be forced to recognize marriages that conflict with their own laws or values.
- Limiting judicial power: Backers of an amendment sought to preempt courts from expanding marriage rights through constitutional interpretation.
Arguments Opposing DOMA and a Marriage Amendment
- Equality and non-discrimination: Critics stressed that denying marital recognition to same-sex couples violated equal protection principles and stigmatized a specific group.
- Respect for personal liberty: Opponents argued that adults should be free to choose their spouses without government condemnation or unequal treatment.
- Federalism concerns reversed: Many noted that DOMA undermined state authority by refusing to honor marriages that states had chosen to recognize.
- Constitutional integrity: Adding discriminatory language to the Constitution was seen as inconsistent with its broader role in securing rights and freedoms.
Current Legal Landscape and Practical Takeaways
Today, the combination of Supreme Court rulings and federal legislation has largely reversed DOMA’s effects. Same-sex couples who marry in any U.S. state are entitled to both state and federal recognition of their marriages.
Key practical takeaways for individuals and families include:
- Uniform recognition: A marriage validly entered into in one state is recognized across all states and by the federal government, regardless of the sex of the spouses.
- Access to benefits: Same-sex spouses are eligible for federal benefits tied to marital status, including Social Security, tax treatment, immigration sponsorship, and federal employee benefits.
- Continuing vigilance: Although statutory and constitutional protections are in place, debates about the scope of marriage rights and related issues—such as religious exemptions—continue.
Frequently Asked Questions (FAQs)
Is DOMA still in effect?
No. DOMA’s key provisions were first neutralized by Supreme Court decisions and later formally repealed by the Respect for Marriage Act, which replaced its definitions with inclusive rules requiring recognition of valid marriages.
Did the Supreme Court rulings alone end DOMA?
The Supreme Court’s decision in United States v. Windsor struck down DOMA’s Section 3, eliminating the federal non-recognition of same-sex marriages. Later, Obergefell v. Hodges ensured that states could not prohibit or refuse to recognize same-sex marriages. Congress subsequently repealed DOMA and codified recognition rules in the Respect for Marriage Act.
What was the proposed Federal Marriage Amendment?
The proposed amendment was a constitutional measure intended to define marriage nationwide as the union of one man and one woman and to prevent any court or legislature from expanding marriage rights beyond that definition. It was debated but never adopted.
Can a state now refuse to recognize a same-sex marriage from another state?
No. Under both Supreme Court precedent and the Respect for Marriage Act, states must recognize lawful same-sex marriages performed in other states, and the federal government must treat those marriages as valid for all federal law purposes.
Why does federal recognition of marriage matter for families?
Federal recognition determines eligibility for numerous key protections and benefits, from Social Security and tax status to immigration rights and access to federal employee benefits. Without such recognition, couples and their children can face financial insecurity, legal uncertainty, and loss of important family protections.
References
- Defense of Marriage Act — GovTrack.us. 1996-09-21. https://www.govtrack.us/congress/bills/104/hr3396
- H.R.3396 – Defense of Marriage Act — Congress.gov. 1996-09-21. https://www.congress.gov/bill/104th-congress/house-bill/3396
- Defense of Marriage Act (DOMA) — Encyclopaedia Britannica. 2022-12-12. https://www.britannica.com/topic/Defense-of-Marriage-Act
- Defense of Marriage Act — EBSCO Research Starters. 2013-06-26. https://www.ebsco.com/research-starters/law/supreme-court-declares-defense-marriage-act-unconstitutional
- Frequently Asked Questions: Defense of Marriage Act (DOMA) — GLAAD. 2013-06-26. https://glaad.org/publications/doma
- The Journey to Marriage Equality in the United States — Human Rights Campaign. 2015-06-26. https://www.hrc.org/our-work/stories/the-journey-to-marriage-equality-in-the-united-states
- The End of a Bad Era: Congress Repeals the Defense of Marriage Act — Justia Verdict. 2022-12-14. https://verdict.justia.com/2022/12/14/the-end-of-a-bad-era-congress-repeals-the-defense-of-marriage-act
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