The Defense of Marriage Act

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In December of 1990, three homosexual couples in Hawaii sought marriage licenses from the Department of Health, only to have their applications denied. In May of the following year, the six individuals filed a class action suit against the Department with the argument that the denial of licenses violated the state’s constitution. The state confessed that the couples were denied the right on the bases of their sexual orientation and the plaintiff’s complaint was dismissed in October. Nina Baehr, her partner and the two other couples appealed to the Hawaii Supreme Court in Baehr v. Lewin in 1993; while the court ruled that homosexual couples do not have the right legally wed, a plurality ruled that denying them the right was sex discrimination and ultimately deemed unconstitutional under two clauses of the Hawaii Constitution: the equal protection provision and the Equal Rights Amendment. On the contrary, however, the presiding judge ruled that the denial of these licenses was unconstitutional and permitted same-sex couples to receive marriage licenses and legally wed in Hawaii (Wardle, 1996).

Three years later, Representative Bob Barr of Georgia and Senator Don Nickles of Oklahoma introduced the Defense of Marriage Act (DOMA) into the House of Representatives and the Senate. Their main impetus for writing the act was a fear of nation-wide recognition of, if not legalization of, gay marriage. Under the Full Faith and Credit Clause, the proceedings in Hawaii, or any other state that subsequently legalized gay marriage, would be forcibly legal in all other states (Wardle, 1996). Congress welcomed the bill in the face of fear realizing the same hypothetical outcome. The act passed through the House and Senate in a landslide vote – 342-67 and 85-14 – respectively. President Bill Clinton signed the bill into public law on September 21st, 1996 (Wardle, 1996).

According to the text, the Defense of Marriage Act defines marriage as “a legal union between one man and one woman as husband and wife.” The bill also declares that no state, Indian tribe, territory or area of the United States must recognize the union between same-sex couples, nor any of the public acts, records or judicial proceedings that respect such a union (The Library of Congress). DOMA does not explicitly illegalize same-sex marriages, though; it only excludes homosexual couples from federal programs and benefits, like property rights, employer health insurance and Social Security. Furthermore, the legal union in one state is not forcefully recognized in other states, but in the state of proceeding, a gay couple may get married if state law permits.

This ambiguity raises several questions concerning the rights of married homosexual couples. Columbia Law Review writer Scott Ruskay-Kidd challenges the validity of DOMA by citing homosexual commuters. He questions whether a homosexual validly married in one state can be considered unmarried in the neighboring state where he or she works; and, should such a situation arise, if the spouse is permitted employment benefit coverage. He continues to create hypothetical situations like if a same-sex spouse is involved in an accident; would the uninjured spouse be granted visitation rights or permitted to make critical medical decisions? Or would the laws of the state in which the accident occurred take precedence? (1436).

Unfortunately, the succinct text of DOMA does not address situations such as these, nor others, which greatly hinders the success of the act. And, in the past fourteen years, DOMA has been reduced to a mere speed bump for same-sex couples on the road to marriage. Several states have legalized same-sex marriage; granted spouses the same protections and benefits; and some state governments have agreed to recognize the proceedings of other state regarding same-sex marriage.

In 2004, Massachusetts became the first state to legalize gay marriages. The law spawned from a state class...
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