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"Defense of marriage acts" (DOMA)

Part 1. Unsuccessful attempts to declare the federal
DOMA law unconstitutional: 2004 to 2008.

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Background: U.S. Federal Government "DOMA" Law:

During 1996-SEP, the federal "Defense of Marriage Act (DOMA)" was signed into law by President Bill Clinton. It restricts the term marriage within Federal law as meaning "only a legal union between one man and one woman as husband and wife." The act has two main effects:

  • DOMA cuts off any access by same-sex married couples to the more than 1,100 federal benefits that are reserved as a special privilege for opposite-sex married couples. Same-sex couples can get married in some states and receive a few hundred rights, privileges and protections for themselves and their children. However, the federal benefits are denied them.

  • DOMA attempts to excuse each state from having to follow the "full faith and credit" clause of the US constitution. This would allow a state to refuse to recognize a same-sex marriage legally made in another state. There is no consensus on whether this provision of DOMA is constitutional. At first glance, it appears to be a section of a law crafted by Congress to violate the U.S. Constitution.

Within the DOMA law:

Section 1 of the act contains its title.

Section 2 attempts to bypass the "full faith and credit" clause of the US constitution. Many if not most constitutional experts believe that clause requires states to recognize essentially all marriages solemnized in other states.

Section 3 prohibits the federal government from following 1,138 laws that define benefits, rights, and protections to married couples when the two spouses are of the same sex. Some of the discrimination enforced by DOMA are that same-sex married couples are:

  • Not permitted to be buried together in a national veterans' cemetery.
  • Not eligible for the Public Safety Officers' Benefits Program that covers public safety officers killed in the line of duty. This is both a death benefit and an education benefit.
  • Not eligible to file federal income taxes jointly.
  • Not eligible to receive a survivor pension of a spouse who was federally employed.
  • Not eligible for Social Security survivor and spousal benefits.
  • Required to pay income tax on the presumed value of health insurance taken out for a spouse.
  • Not eligible to average income with one's spouse for income tax purposes.
  • Not permitted to add one's spouse to a federal family health plan.
  • Not allowed to access medical leave.
  • Not eligible to inheret the family home without incurring taxes.
  • Not permitted to sponsor a non-citizen spouse. 12

The law does not prevent same-sex marriages. It is still up to each state to define who it allows to marry. Any state can decide to:

bulletAllow same-sex couples to marry, or
bullet Allow them to enter a civil union -- with the same state rights as married couples receive -- or domestic partnership, -- with some of the same state rights as married couples receive, or
bulletNot recognize their relationship at all -- as was the case in many states prior to 1968 for interracial couples -- and simply regard them as roommates without benefits and protections for themselves and their children.

bullet Perhaps declare them criminals if they were married in another state. This happened prior to 1968 for interracial couples in Virginia and some other states. No such enabling laws exist at the present time for same-sex couples. However the level of fear and dislike of same-sex marriages (SSMs) among many social and religious conservatives might motivate some legislators to try to criminalize SSMs in their state at some time in the future. Any such legislation would be clearly unconstitutional because it would violate the U.S. Supreme Court's decision in Lawrence v. Texas

2004: Initial attempt to overturn DOMA:

Before a court case could be initiated, gays and lesbians had to achieve the right to marry in at least one state. This first happened in the state of Massachusetts where the Supreme Judicial Court ordered that marriage licenses be sold and later registered to same-sex couples starting on 2004-MAY-20. SSMs have since been legalized by a total of ten states -- mostly in New England -- across Canada and in some other countries.

A couple married in Massachusetts in late 2004-MAY, returned to their home in Minnesota, and launched a lawsuit with the U.S. District Court to force the IRS to change their tax return to reflect their new status: "married, filing jointly." This made no economic sense for them, because if they were recognized as married, they would have to pay the "marriage penalty" --  an increased level of income taxes. However, the concept of being married and having their marriage recognized by the federal government was sufficiently important to them to overrule the economic disadvantage. Their lawsuit was unsuccessful. 4

Five other same-sex couples attempted similar lawsuits; none succeeded.

2008: Senator Barak Obama supports repeal of DOMA law:

During his campaign for the presidency, Senator Barak Obama (D-IL) wrote an open letter concerning lesbian, gay, bisexual, transsexual (LGBT) rights in the U.S. He said in part:

"I'm running for President to build an America that lives up to our founding promise of equality for all -- a promise that extends to our gay brothers and sisters. It's wrong to have millions of Americans living as second-class citizens in this nation. And I ask for your support in this election so that together we can bring about real change for all LGBT Americans. ..."

"I personally believe that civil unions represent the best way to secure that equal treatment. But I also believe that the federal government should not stand in the way of states that want to decide on their own how best to pursue equality for gay and lesbian couples -- whether that means a domestic partnership, a civil union, or a civil marriage. Unlike Senator [Hillary] Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) -- a position I have held since before arriving in the U.S. Senate. While some say we should repeal only part of the law, I believe we should get rid of that statute altogether. Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does." 1

Senator Obama refers to "gay and lesbian couples," a nearly universal practice of the media. In reality, some same-sex relationships and marriages involve one or even two bisexuals.

Later, as President, he was moved by the increasing support for SSM to reconsider his position. During 2012-MAY he and several other Democratic politicians announced their support for SSM.

2008-FEB: California couple attempts to overturn DOMA law:

A same-sex couple in California -- Arthur Smelt and Christopher Hammer -- were married before Proposition 8 suddenly terminated same-sex marriages in that state during 2008-NOV. They filed a lawsuit on 2009-MAR-09 that sued the federal government in an attempt to overturn the DOMA law. The case is Smelt v. United States. 11 They claimed that the law violates their constitutionally-protected right to travel from state to state, their free speech rights, and their due process rights.

The Obama administration took the traditional view expected of the government's executive branch by defending the existing DOMA law and asking that the case be dismissed --even though President Obama has indicated his support to have the law repealed by Congress. Some have speculated that the President wants to wait until after the mid term elections in 2010-NOV, before attempting to repeal DOMA, because of anticipated adverse reaction of religious and social conservatives. Thus, he would prefer that no court cases were heard in the meantime.

On 2009-AUG-17, W. Scott Simpson, a federal Justice Department lawyer, filed its pro-DOMA brief in the Smelt v. United States case. It stated that:

"... this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal." 10

The memorandum also stated that as long as DOMA is on the books, it is the responsibility of the executive branch of the Federal government to defend it.

Smelt v. United States was not successful.

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This essay is continued in Part 2

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Alex Okrent, "Equality is a moral imperative," Organizing for America, 2009-FEB-28, at:
  2. Michael Triplett, "Reporting on the DOMA Brief, Part 1," National Lesbian & Gay Journalists Association at:
  3. Jim Brown & Charlie Butts, "Obama follows through, files to repeal DOMA," One News Now, 2009-AUG-18, at:
  4. Terry Phillips, "Same-sex couples take on the IRS," Family News in Focus, 2004-MAY-26, at:
  5. Jake Tapper, "Obama Justice Department Defends Defense Of Marriage Act  That Candidate Obama Opposed," ABC News, 2009-JUN-12, at:
  6. Decian McCullagh, "Gay Rights Groups Irate After Obama Administration Lauds Defense Of Marriage Act," CBS News, 2009-JUN-12, at:
  7. Kevin Fayle, "Obama Administration Says It Must Support DOMA, But It Doesn't Have to Like It," FindLaw, 2009-AUG-17, at:
  8. Kevin Fayle, "Judge Dismisses DOMA Lawsuit, Even Though Everyone Involved Seems to Hate DOMA," 2009-AUG-25, at:
  9. Alex Okrent, "Equality is a Moral Imperative," 2008-FEB-28, at:
  10. W. Scott Simpson, "Government Memo Supporting Dismissal of Defense of Marriage Act Lawsuit," Scribd, 2009-AUG-17, at:
  11. Arthur Smelt et al v. United States of America et al," Justia Dockets & Filings, at:
  12. "DOMA stories: Federal marriage discrimination hurts families," Gay & Lesbian Advocates & Defenders, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Unconst. > here

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Copyright © 1995 to 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2009-AUG-17
Latest update: 2012-NOV-26
Author: B.A. Robinson

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