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

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


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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Panel 1 Lincoln, Executive Power & The Modern Presidency

Marisa Floriani, Managing Editor of the Government Law Review Fireplace Blog

Lincoln and Executive Power — Hon. Frank J. Williams, Chief Justice, Rhode Island Supreme Court 

          Hon. Frank J. Williams opened the symposium with “the U.S. suffered an unexpected attack.”  As he described the state of America during war time, he drew parallels between Abraham Lincoln and George W. Bush.  As a member of the audience, I couldn’t help but think – the more things change, the more things stay the same.  Hon. Williams highlighted the difficult legal position any president is placed in during war time.  He brilliantly stated that a doctor gives a sick man medicine that he would not give a well man, and the same logic should be applied for the power a president exerts during war time as opposed to a time of peace.

         During the Civil War, Lincoln increased the army and navy, appropriated money, declared a blockade, and, most controversially, authorized the suspension of the writ of habeas corpus.  These acts required congressional consent; however, Lincoln completely bypassed that requirement.  According to Hon. Williams these were Lincoln’s necessities in order to handle the “northern realities.”  So what was Lincoln’s constitutional basis to suspend the writ of habeas corpus? 

            Hon. Williams described two cases that reflected Lincoln’s view of the Constitution.  First, Lincoln acted then he went to Congress for ratification.  Lincoln had realized he had stretched his power, but Lincoln acted out of necessity.  Second, Lincoln criticized the Albany Democrats for invoking safeguards, for it was Lincoln’s belief that their arguments would have been stronger if the safeguards had been placed during wartime.  Therefore it is clear from Hon. Williams’ discussion that it was Lincoln’s belief that war-time presidents should be allotted certain flexibilities, and Lincoln acted accordingly.

       Although his actions may have eventually been deemed unconstitutional, Lincoln has been forgiven by society.  Does this mean that one day society will forgive George W. Bush for his decisions in war time?  Only time will tell.

  Continue reading “Panel 1 Lincoln, Executive Power & The Modern Presidency”