Daily Archives: April 10, 2011

The Fate of the Marital Union: Is DOMA Approaching Its Last Day?

Written by Lisa Alexander, Public Relations Chair, Albany Government Law Review

Introduction

DOMA’s days might be numbered.  U.S. Attorney General Eric Holder recently announced that the Department of Justice (DOJ) will no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in court.[1] While the DOJ will continue to appear in litigation and “represent the interests of the United States,”[2] it will no longer argue that Section 3 of DOMA is constitutional as it is applied to same-sex couples.[3] This decision has sparked heated debate and a flurry of proposed legislation.  Though riddled with controversy, the facts support that the executive made an appropriate, and arguably necessary, decision.

A Brief History of DOMA

The Defense of Marriage Act was enacted in 1996.  The crux of the current controversy is Section 3, which defines marriage as 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.”[4] DOMA was enacted, at least in part, as a response to Hawaii’s Supreme Court decision Baehr v. Lewin.[5] In Baehr, the court found that while the applicant same-sex couples did not have a fundamental right to marry pursuant to the right to privacy, they could argue their equal protection theory on remand.[6] The possibility that homosexual men and women might attain a marriage license in Hawaii and that their home states would have to recognize the unions’ legality under the Full Faith and Credit Clause was too much for Congress to bear. DOMA easily passed through both the House and Senate and was signed into law by President Bill Clinton.[7]

The legislative record illustrates Congress’ judgments about the definition of marriage and the morality behind it.  Some members of Congress firmly believed that marriage could only be between a man and a woman.  For instance, Representative Barr remarked that “[M]arriage throughout the entire history of not only our civilization but Western civilization has meant the legal union between one man and one woman.”[8] Others emphasized that the homosexual marriage question was a moral one, and that such marriages were morally wrong.  Representative Hoke remarked:

One of the things that was said during the debate that I think is probably the most preposterous . . .  is that Congress has no business legislating morality . . . The fact is that we legislate morality on a daily basis. It is through the law that we as a nation express the morals and the moral sensibilities of the United States, and what is morality except to decide what is right and what is wrong? That is what morality is all about.[9]

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Filed under Constitutional Law, Equal Protection, Human Rights, Matrimonial Law