The Defense of Marriage Act: LGBTQ + Community

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The struggle of members of the LGBTQ+ community for their rights at the local level has a long history in various countries, including the United States. One of the most acute topics in this regard is legislation related to marital status, which presupposes the observance of key human rights. The most developed countries on the planet, including the European Union, Australia, New Zealand, and Canada, provide their citizens with equal rights for both same-sex and opposed-sex marriages. However, in the US, there has been a long history of gender discrimination against gay and lesbian couples at the legislative level.

One of the milestones in the development of the struggle of members of the LGBTQ + community for their rights in the United States is the adoption of the Defense of Marriage Act (DOMA). This law at the federal level defines marriage as an exclusively heterosexual union, which deprives homosexual couples of legal marital status. While the Defense of Marriage Act impacted the rights of same-sex couples across the US since 1996, not only providing financial insecurity but also oppressing their human rights as a whole, it is extremity is what inspired what the eventual lead to the legalization of same-sex marriage nationwide.

The Defense of Marriage Act (DOMA) was passed in the United States in 1996. The law “prevents same-sex couples from receiving any of the federal rights or benefits of marriage even if a state eventually allows same-sex marriage.” [1] The main purpose of this act was to consolidate the federal definition of the concept of marriage in such a way that it excluded homosexual unions.[2] As Hay notes, DOMA serves two main purposes: it defines marriage as the union of a man and a woman exclusively for federal law and permits states to deny recognition of marriage unions of other forms.[3] More specifically, DOMA restricts the definition of marriage to “only a legal union between one man and one woman as husband and wife.”[4] The concept of spouse implies within the law that only a member of the opposite sex can be a husband or wife. Thus, this law does not imply same-sex marriage non-recognition but only designates a narrow scope of possible union configurations within the framework of federal law.

The main reason for the adoption of this law was the general moral panic regarding homosexual unions in the United States. Adam underlines that “the DOMA phenomenon is consistent within the larger context of the recent history of gay and lesbian rights in the United States.”[5] In general, in Europe, Australia, New Zealand, and Canada, there is a long history of legislative support for human rights, including the elimination of gender discrimination. Reforms to institutionalize same-sex unions have been actively adopted in these regions since the 60s, peaking with the adoption of the Charter of Fundamental Rights in 2000.[6] However, in the USA, the situation was different since, in 1986, legislation was actively passed in the country to turn gays and lesbians into criminals.[7] The process has continued even into the twenty-first century with the adoption of DOMA in the year 2000 at state levels in California and Nebraska.[8] Thus, this law identifies an exceptional US attitude towards same-sex unions as opposed to the entire developed world.

The reason for signing DOMA was the 1993 Hawaii gender discrimination lawsuit and legislative debates that the case raised. Beginning with a court case (Baehr v. Lewin, 1993) in Hawaii, three same-sex couples filed a lawsuit, arguing that they should have the right to marry under the state constitution, as it provided equal rights and prohibited sex discrimination. Hawaii’s highest state tribunal ruled that the state could not prohibit same-sex marriage without good cause; however, despite the agreement from the Supreme Court, the case still returned to the trial court.[9] Facing more lawsuits coming in several states, the US federal government and several other state legislatures have passed legislation prohibiting or permitting same-sex marriage or different types of same-sex unions. Under the Tenth Amendment and the 8th paragraph of Article 1 of the US Constitution, it is not within the authority of the Federation to legislate in the area of family law. For example, the definition of marriage, which the states have an obligation to do specifically.

In 1996, the trial court ruled that the state of Hawaii’s proposed grounds did not justify a ban on same-sex marriage. Although this ruling has not become enforceable, supporters of the exclusive right to marriage for heterosexuals have become alarmed. This is due to the first passage of Article 4 of the US Constitution, the Full Faith and Credit Clause, which requires states to recognize the laws of other states and nations.[10] Thus the Defense of Marriage Act was proposed for consideration by the US Congress in opposition. In a vote on September 10, 1996, 85 senators supported the bill, 14 opposed it, and one person abstained from voting. In the US House of Representatives, the bill was also voted for by a large majority (342 to 67).[11] On September 21, 1996, US President Bill Clinton signed the law.

By far, the most significant immediate impact of the adoption of DOMA has been increased gender discrimination. In particular, the strict definition of marriage as the union of a man and a woman assumed a privileged status for heterosexual couples.[12] At the same time, homosexual unions were legally beyond recognition and could not acquire legal status. In this regard, same-sex couples had to face a number of difficulties that complicated various aspects of daily life associated with marital status.

Another immediate impact for same-sex couples was increased not only gender discrimination but also deprivation of economic benefits. In particular, since DOMA legally defines marriage, as well as the characteristics of spouses, gay and lesbian unions, could not claim a number of financial benefits based on marital status.[13] The main economic difficulty lies in the impossibility of recognizing homosexual couples as taxable units, as opposed to heterosexual marriages.[14] Despite the fact that gay and lesbian couples share income, property, and other economic resources, they are legally treated as singles under DOMA. Thus, the law, to some extent, discriminates against heterosexual couples by imposing a large tax burden on them.[15] On the other hand, the legislation does not protect homosexual couples in the division and inheritance of property, which puts them in a disadvantaged position.

Among other significant economic impacts of DOMA on homosexual couples, the inability to receive social security benefits can be underlined. In particular, heterosexual couples lack martial benefits, including the spousal benefit, the survivor benefit, as well as a death benefit.[16] Thus, same-sex couples had to pay the Social Security taxes but received limited benefits. Overall, gay and lesbian couples received 17-31 percent less economic support from Social Security than opposite-sex couples.[17] This aspect leads to economic instability among members of the LGBTQ+ community and has contributed to impoverishment in the long run.

The extreme measures to prevent the spread of same-sex marriage through DOMA ultimately led to stronger responses from gay, lesbian, and bisexual activists. There have been a number of discriminatory lawsuits against this act, all challenging it in numerous ways. On March 27, 2013, the US Supreme Court heard a case– United States v. Windsor– who challenged the constitutionality of the Defense of Marriage Act.[18] President Barack Obama decided in 2011 not to defend the law in court; its constitutionality, however, was supported by the House of Representatives, controlled by the conservative Republican Party. Former President Bill Clinton also called for the repeal of the law. On June 26, 2013, the US Supreme Court ruled in Windsor v. the United States, holding that same-sex spouses have the same rights under federal law as opposite-sex spouses.[19] Five of the nine Supreme Court justices ruled that Section 3 of the Defense of Marriage Act, which affirms marriage as solely the union of a man and a woman, was unconstitutional. Justices Anton Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan voted to repeal the law.

This Supreme Court decision recognized the unconstitutionality of discrimination against same-sex spouses compared to opposite-sex spouses on benefits, entitlements, and taxation issues. However, for another two years, the resolution left a number of issues, including whether the federal agency should identify same-sex marriages in states where they are undocumented. Section 2 of the law, which gave states the right not to recognize same-sex marriages from other states, was not repealed. Technically, it is still in effect, but after the Supreme Court’s June 26, 2015, decision to recognize same-sex marriages, the provision is de facto null and void.

Thus, from the point of view of the human rights struggle of the LGBTQ+ community against DOMA, this is a significant achievement for the formation of same-sex marriage legislation in the modern United States. In particular, numerous lawsuits have made it possible to recognize DOMA as contrary to the 14th Amendment of the US Constitution, which assumes that every person can receive equal legal protection.[20] As noted, the countries of Europe, Australia, and New Zealand have gone this way in the last century, while the United States has taken much longer. At present, the institutionalization of same-sex marriages in the country, although uneven, provides gay and lesbian couples with all the key rights associated with marital status.

DOMA has long prevented members of the LGBTQ+ community from acquiring a full set of human rights. Despite attempts by federal law to deprive homosexual couples of legal marital status, these restrictions have led to the development of the struggle of members of the community for their rights. While the law has caused many legal hardships for same-sex couples, it has become a driver for increasing public dissatisfaction with existing gender discrimination. Thus, in a historical context, DOMA became a turning point for the empowerment of same-sex rights. At present, LGBTQ+ unions enjoy the same benefits as heterosexual couples, marking advances in eliminating discrimination.

Bibliography

Adam, Barry. “” Journal of the History of Sexuality 12, no. 2 (April 2003): 259-276.

Bishin, Benjamin, and Charles A. Smith. Political Research Quarterly 66, no. 4 (February 2013): 794-803.

Brumbaugh, Stacey, et al. Journal of Marriage and Family 70, no. 2 (May 2008): 345-359.

Gerstmann, Evan. Same-Sex Marriage and the Constitution. 2nd ed. Cambridge University Press, 2008.

Hay, Peter. The American Journal of Comparative Law 54, (Fall 2006): 257-279.

Moses, Julia. Marriage, Law and Modernity: Global Histories. Bloomsbury Publishing, 2017.

Terry, Keeva. Columbia Journal of Gender and Law 20, no. 1 (September 2011): 383-425.

Sanders, Steve. “The Constitutional Right to (Keep Your) Same-Sex Marriage.” Michigan Law Review 110, no. 8 (2012): 1421-1482.

Seto, Theodore P. “The Unintended Tax Advantages of Gay Marriage.” Washington and Lee Law Review 65, no. 4 (Fall 2008): 1529-1592.

Strasser, Mark. “A Little Older, a Little Wiser, and Still Committed.” Rutgers Law Review 61, (July 2009): 507-527.

The Harvard Law Review Association. Harvard Law Review 117, no. 8 (June 2004): 2684-2707.

Footnotes

  1. Evan Gerstmann, Same-Sex Marriage and the Constitution, 2nd ed. (Cambridge University Press, 2008), 7.
  2. The Harvard Law Review Association, “Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage,” Harvard Law Review 117, no. 8 (2004): 2684.
  3. Peter Hay, “Recognition of Same-Sex Legal Relationships in the United States,” The American Journal of Comparative Law 54, (2006): 261.
  4. Keeva Terry, “Same-Sex Relationships, DOMA, and the Tax Code: Rethinking the Relevance of DOMA to Straight Couples,” Columbia Journal of Gender and Law 20, no. 1(2011): 385.
  5. Barry Adam, “The Defense of Marriage Act and American Exceptionalism: The “Gay Marriage” Panic in the United States,” Journal of the History of Sexuality 12, no. 2 (2003): 261.
  6. Ibid., 261.
  7. Ibid., 261.
  8. Adam, “The Defense of Marriage Act,” 262.
  9. The Harvard Law Review Association, “Litigating the Defense of Marriage Act,” 2685.
  10. Terry, “Same-Sex Relationships,” 386.
  11. Benjamin Bishin and Charles A. Smith, “When Do Legislators Defy Popular Sovereignty? Testing Theories of Minority Representation Using DOMA,” Political Research Quarterly 66, no. 4 (2013): 798.
  12. Stacey Brumbaugh et al., “Attitudes Toward Gay Marriage in States Undergoing Marriage Law Transformation,” Journal of Marriage and Family 70, no. 2 (2008): 350.
  13. Mark Strasser, “A Little Older, a Little Wiser, and Still Committed,” Rutgers Law Review 61, (2009): 509.
  14. Theodore Seto, “The Unintended Tax Advantages of Gay Marriage,” Washington and Lee Law Review 65, no. 4 (2008): 1543.
  15. Terry, “Same-Sex Relationships,” 386.
  16. Steve Sanders, “The Constitutional Right to (Keep Your) Same-Sex Marriage,” Michigan Law Review 110, no. 8 (2012): 1435.
  17. Ibid., 1436.
  18. Julia Moses, Marriage, Law and Modernity Global Histories (Bloomsbury Publishing, 2017), 253.
  19. Moses, Marriage, Law and Modernity, 253.
  20. Ibid., 254.
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